State of New Jersey v. Rashon Brown

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0211-12T1

A-3356-13T1

STATE OF NEW JERSEY,

Plaintiff-Respondent, APPROVED FOR PUBLICATION

v. August 31, 2015

APPELLATE DIVISION

RASHON BROWN,

Defendant-Appellant.

__________________________

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MALIK Q. SMITH,

Defendant-Appellant.

___________________________

Submitted (A-0211-12) January 14, 2015;

Submitted (A-3356-13) March 25, 2015 -

Decided August 31, 2015

Before Judges Fuentes, Ashrafi and O'Connor.

On appeal from Superior Court of New Jersey,

Law Division, Union County, Indictment No.

09-04-0281.

Joseph E. Krakora, Public Defender, attorney

for appellants (Karen E. Truncale, Assistant

Deputy Public Defender, of counsel and on

the brief in A-0211-12; Monique Moyse,

Designated Council, on the brief in A-3356-

13).

Grace H. Park, Acting Union County Prosecutor,

attorney for respondent (Kimberly L. Donnelly,

Special Deputy Attorney General/Acting

Assistant Prosecutor, of counsel and on the

brief in A-0211-12; Stephen K. Kaiser,

Special Deputy Attorney General/Acting

Assistant Prosecutor, of counsel and on the

brief in A-3356-13).

Appellant in A-0211-12 filed a pro se

supplemental brief.

The opinion of the court was delivered by

FUENTES, P.J.A.D.

We consolidate these two appeals because Rashon Brown and

Malik Q. Smith were tried together before the same jury. The

jury found both defendants guilty of first degree carjacking and

other related offenses. We are compelled to reverse the jury's

verdict because the trial judge failed to remove a deliberating

juror who disclosed her racial bias to two of her fellow jurors

and to the judge.

Specifically, on the second day of deliberations, Juror 4

told Jurors 5 and 12 she was "concerned" and "nervous" because

she had seen two African-American men that morning in the

neighborhood where she lives. Juror 4 noted, "[t]hey certainly

don't live around there, and they don't hang around there."

Juror 5, who works in that area, agreed that this seemed strange

2 A-0211-12T1

because that area "mostly is Italian and White people. There

really are no Black people around there." Because both

defendants are African-American, Juror 4 feared the presence of

two African-American men in her neighborhood may have had some

kind of sinister connection to the trial.

Jurors 5 and 12 were sympathetic with juror 4's predicament

and suggested she should report her concerns to the Sheriff's

Officer who was assigned to secure the jury during

deliberations. The Sheriff's Officer informed the trial judge,

who then questioned each of the three jurors separately. The

judge decided to allow all three jurors to remain on the jury

and continue deliberating after they assured him this incident

did not have an effect on their impartiality, they would follow

the court's instructions on the law, and they would base their

verdict only on the evidence presented at trial.

On these facts, we are compelled to reverse. When Juror 4

inferred a sinister conspiratorial purpose from a facially

innocuous event, based only on the race of the participants, she

revealed a deeply-rooted, latent racial bias that required her

removal from the jury. The trial judge erred in permitting her

to remain on the jury and continue deliberating merely based on

the juror's self-serving denial of racial bias. Her initial

instinctive, subliminal association of race with criminality or

3 A-0211-12T1

wrong-doing far trumped her subsequent assurances of

impartiality. In her willingness to come forward and candidly

report her misgivings, Juror 4 also revealed her unawareness of

how engrained her racial bias was in her subconscious. This

incongruity between Juror 4's conscious acts and latent beliefs

is one of the most pernicious, unintended aspects of our jury

system.

Our pretrial jury selection screening process is designed

and intended to detect and filter out jurors who harbor views or

beliefs that are per se incompatible with the judiciary's

mission to deliver equal justice under law. However, like all

things designed by the human mind, the pretrial jury selection

process is not perfect. This requires our colleagues at the

trial level to be in a constant state of vigilance throughout a

jury trial for any signs of racial bias or other extraneous

matters that may affect a juror's impartiality. Once a juror's

latent or overt racial bias is discovered, the juror must be

removed from the jury. Thereafter, the judge must conduct a

comprehensive, fact-sensitive inquiry to determine whether the

removed juror's odious beliefs are shared by any other member of

the jury or has otherwise tainted the remaining jurors to such

an extent that a mistrial is warranted.

4 A-0211-12T1

Furthermore, and independent of this error, the trial judge

also failed to take proper measures to determine whether Jurors

5 and 12, who initially shared Juror 4's concern and advised her

to report this event to the Sheriff's Officer, harbored similar

latent racial biases. As we will discuss and explain in greater

detail, infra, the record shows the trial judge also failed to

conduct a thorough and probing examination of these two jurors.

This failure left unresolved whether Jurors 5 and 12 were

capable of discharging their duty to judge the evidence fairly

and impartially.

I

On April 2, 2009, a Union County Grand Jury returned

Indictment No. 09-04-00281, charging defendants Rashon Brown and

Malik Q. Smith with first degree carjacking, N.J.S.A. 2C:15-2,

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

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

4a, second degree unlawful possession of a firearm, N.J.S.A.

2C:39-5b, third degree terroristic threats, N.J.S.A. 2C:12-3a

and/or N.J.S.A. 2C:12-3b, fourth degree resisting arrest,

N.J.S.A. 2C:29-2a, and fourth degree possession of a prohibited

5 A-0211-12T1

device in the form of a type of ammunition known as "hollow

nose"1 bullets, N.J.S.A. 2C:39-3f.

The same indictment charged Brown with third degree

aggravated assault by "knowingly, under circumstances

manifesting extreme indifference to the value of human life,"

pointing or displaying a firearm, at or in the direction of a

law enforcement officer, N.J.S.A. 2C:12-1b(9), third degree

hindering apprehension in connection with the investigation and

prosecution of the crimes of first degree carjacking and first

degree robbery, N.J.S.A. 2C:29-3b(4), and fourth degree

hindering apprehension in connection with the investigation and

prosecution of the crime of third degree aggravated assault,

N.J.S.A. 2C:29b(4).

Defendants were tried together over a ten-day period

commencing on February 22, 2012, and ending on March 14, 2012.

The jury found Brown guilty of all of the charges, except for

two counts. The jury acquitted Brown of second degree

aggravated assault by pointing a handgun at two police officers,

N.J.S.A. 2C:12-1b(9),2 and fourth degree possession of prohibited

1

Although the Indictment uses the term "hollow point bullet,"

N.J.S.A. 2C:39-3f describes this type of ammunition as a "hollow

nose or dum-dum bullet."

2

Smith was not indicted for this offense.

6 A-0211-12T1

ammunition under N.J.S.A. 2C:39-3f. The jury found Smith guilty

of all charges except for one. The jury acquitted Smith of the

charge of fourth degree possession of prohibited ammunition

under N.J.S.A. 2C:39-3f.

The trial court sentenced Brown to serve an aggregate term

of twenty-five years, subject to an eighty-five percent period

of parole ineligibility and five years of parole supervision as

mandated by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

The court sentenced Smith to serve an aggregate term of twenty-

three years, subject to an eighty-five percent period of parole

ineligibility and five years of parole supervision as mandated

by NERA. Brown filed his notice of appeal on September 6, 2012.

Smith filed his notice of appeal on March 18, 2014.3

Brown and Smith are represented by separate appellate

counsel and have filed separate briefs. Brown has also filed a

supplemental pro se brief raising additional arguments.

However, both defendants have raised the issue of racial bias

with respect to one juror, and demand we vacate the jury's

verdict and remand the matter for a new trial. Because the

trial court's error with respect to this one issue is of

sufficient magnitude to vitiate the legal viability of the

3

By order dated April 10, 2014, this court granted Smith's

motion to file his notice of appeal "as within time."

7 A-0211-12T1

jury's verdict as a whole, we need not and specifically do not

reach the remaining arguments raised by both defendants.

We recite the following facts from the evidence presented

at trial.

II

On December 11, 2008, at approximately 2:20 p.m., Evelyn

Arroyo-Maultsby was inside her brand new, white Infiniti that

she had parked in front of her daughter Janna's apartment

complex located on Schley Street in the Township of Hillside.

She was waiting for Janna, who had gone into her apartment to

retrieve something. While she waited, a young man tapped on her

car window and opened the door. Thinking he may have been

confused, Arroyo-Maultsby grabbed the door to close it, and

said, "this is my car." The man told her to "get out of the

car" and grabbed the door again. He then told her to get of the

car again. It was at that moment that Arroyo-Maultsby asked,

"[a]re you carjacking me[?]" The man just looked at her and

again demanded that she get out of the car.

Arroyo-Maultsby begged the young man not to do this. She

testified she told him repeatedly he was going to ruin his life.

At that point, the man opened his jacket and showed her his gun. 4

4

Based on Arroyo-Maultsby's physical demonstration while she was

on the witness stand, the trial judge confirmed for the record

(continued)

8 A-0211-12T1

Arroyo-Maultsby grabbed her pocketbook and walked out of the car

"because once I saw the gun, I knew he was serious." However,

the man told her to put the purse back in the car. Arroyo-

Maultsby testified this made her angry. Despite the potentially

dangerous circumstances, she testified:

I stomped my feet [as] if he was my kid, and

I said, you want my pocketbook too, you're

taking my car and you want my pocketbook

too. Well, then can I at least have my

license now that you're taking my car. And

then he said, yes, you could have your

license.

In response to the prosecutor's question, Arroyo-Maultsby

gave the following description of her assailant:

A. He was young. He was a Black boy, and he

had dreads, and he had his hoodie over his

head, and I still was able to see his face.

Q. Tell us about the clothing he was

wearing.

A. He was wearing black.

. . . .

Q. How close was he to you when you're

outside of the car?

A. Oh, face to face, like my nose to nose,

that close. He's just a little taller than

me, so I was like here.

Q. Okay. How tall are you?

(continued)

that when he opened his jacket, the young man had the gun on the

right side of his waist.

9 A-0211-12T1

A. I'm 5'3", almost 5'4", 5'3 1/2",

something like that.

Q. What was your observations about the

height of the person that you're speaking

with?

A. Maybe 5'8", I guess. He was taller than

me.

The witness also described her assailant as a young Black man,

with black hair, and no facial hair.

When this brief harrowing encounter ended, Arroyo-Maultsby

began walking toward the front of her daughter's building. As

she approached, she saw her daughter standing there. Arroyo-

Maultsby motioned to her daughter to remain where she was

because she was afraid of what could happen to her if she made

any kind of movement. However, Arroyo-Maultsby mouthed the

words "9-1-1" to her daughter, but Janna signaled she did not

have a cell phone. Arroyo-Maultsby then saw the young assailant

get into her car. As he backed up the vehicle, she turned

around and saw a second man walking around the car. At that

moment she realized this second man was waiting to get into the

passenger seat of her car. The two men drove away, heading

south towards Route 78.

10 A-0211-12T1

Arroyo-Maultsby called 9-1-1 immediately thereafter to

report the carjacking.5 Several police officers from the

Hillside Police Department arrived at the apartment complex

within minutes. Detective Michael D. Ricci, Detective Peter

Corvelli, Detective James Holmes, and Lieutenant Matthew Ross

left the police station and set out toward the scene of the

carjacking at Schley Street. While en route, they learned over

the police radio that the Infiniti had left the scene and was

heading towards Edwin Place in Newark. The previous week, the

Hillside Police Department recovered a carjacked vehicle near

Edwin Place.

Lieutenant Ross testified they saw a vehicle fitting the

description of the carjacked car when they reached the area of

Clinton and St. James Place. After confirming the license plate

number matched the plate number of the carjacked Infiniti, Ross

testified the police officers executed a "tactical box" of the

car, blocking its path in every direction. Ross testified the

Infiniti "rammed Detective Ricci's car that was performing the

other side of the tactical box."

Once the Infiniti was completely blocked, Ross saw "[t]he

driver immediately jump[] out of the car and had in his hand a

5

The recording of the 9-1-1 call was played to the jury without

objection from defense counsel.

11 A-0211-12T1

black semi-automatic handgun." When Ross yelled "gun," the

driver "immediately turned and bolted over a fence that was at

the house's driveway." Detective Corvelli also testified he

yelled "gun, gun," when he saw the driver run from the scene

after he stepped out of the boxed-in vehicle. Ross and Corvelli

both testified they saw the driver point the gun at them

immediately before he fled.

Ross also saw a person jump out of the passenger side of

the Infiniti. This person ran between the vehicles towards

Ross, "at which time [Ross] grabbed him by his jacket." Ross

testified that by grabbing his jacket, it caused him to "[spin]

. . . around so we were facing each other. He pulled out of my

grasp and ran east on St. James [Place]." The four police

officers at the scene immediately began to pursue both suspects

on foot. Holmes and Corvelli hopped over the fence and pursued

the driver down a driveway and into a yard; Ross and Ricci

pursued the passenger. Corvelli testified they lost sight of

the driver when he jumped over another fence adjacent to

Willoughby Street.

Ross stopped pursuing the passenger when he heard "shots

fired" when he was "[m]aybe a house . . . and a half away from

the original crime scene." Corvelli also testified to hearing

gunshots fired. When Corvelli reached Willoughby Street, he

12 A-0211-12T1

learned the gunshots had been fired by Detective Holmes.

Corvelli estimated he heard four or five gunshots. Holmes had

shot the alleged driver of the Infiniti in the foot. This man

was subsequently identified as defendant Rashon Brown.6

According to Corvelli, in the process of searching the area

for Brown, "a lady" motioned to them through a window that "she

saw an individual either hide under her porch or go into her

porch area." Corvelli yelled to Lieutenant Ross that the driver

was hiding in the porch area. Ross, who had been pursuing the

passenger down St. James Place until he heard the gunshots, ran

back towards Holmes and Corvelli. They eventually found Brown

hiding under a pile of clothes on the woman's porch. Brown was

taken to the hospital, where he identified himself as Kareem or

Kashawn Ledbetter. Ross and Corvelli identified defendant at

trial as the driver of the vehicle and the man they apprehended.

Arroyo-Maultsby learned the police had recovered her car

while she was still in front of her daughter's apartment

complex. She therefore went to the Hillside Police Department

6

Neither the State nor defendant called Detective James Holmes

as a witness in this case. The record shows that at the time

this case came for trial, Holmes was no longer a member of the

Hillside Police Department. As reflected in the colloquy that

took place in open court on February 23, 2012, Holmes was

charged and convicted of shooting his stepson before the start

of trial. Presumably, Holmes thereafter forfeited his position

as a police officer, as mandated by N.J.S.A. 2C:51-2.

13 A-0211-12T1

to submit her formal statement. Arroyo-Maultsby and her family

went to the Newark Police Department the following day to

reclaim her pocketbook and sign a form giving her consent for

the police to search the Infiniti. While she was sitting at a

detective's desk waiting to complete the consent to search form,

Arroyo-Maultsby saw the young man who had carjacked her car

being led through the room. She gave the following account of

what transpired:

A. While I was waiting for the guy, the

police officer to give me -- I believe that

was a detective -- waiting to give me the

paperwork so I could fill out, I saw a young

guy come in, and -- it was just, it was just

a coincidence. [The police officer] said

that was the boy that carjacked you.

Q. Was that person in the same room as you

in Newark?

A. Yeah, he was walking in, and I looked

right at him, and he looked right at me.

Q. And what happened when you made [sic]

that realization?

A. I broke down and told my daughter that

was the boy that carjacked me.

Q. Was your daughter at the Newark Police

Department with you?

A. Yes.

Q. Ms. Arroyo-Maultsby, is that your

daughter Janna, who was with you the day

before?

A. No.

14 A-0211-12T1

Q. A different daughter?

A. A different daughter.

Q. What is it about the person that you saw

in Newark on the 12th of [December] 2008

that you recognized from the carjacking?

A. When he came in and as he was getting

closer, I looked straight at his face. He

looked at me, and I noticed those eyes, his

skin, those dreads, and I just knew it was

him.

Q. After you turned to your daughter, did

you speak to anybody else about your

observation?

A. At first, I didn't realize if anybody

heard me. I was just talking to her, and I

just broke down.

. . . .

Q. And then did you tell detectives why you

were upset?

A. The detectives was asking [sic] me why I

was so upset, so I had to tell them.

Q. Ms. Arroyo-Maultsby, do you see the

person in court today that you saw at the

Newark Police Department on the 12th of

December, 2008?

A. It's hard to tell. He's wearing glasses

now.

Q. Ms. Arroyo-Maultsby, who is it that

you're saying it's hard to tell because he's

wearing glasses? Who are you indicating?

A. The one with the dreads. His dreads

wasn't [sic] that long.

15 A-0211-12T1

Arroyo-Maultsby eventually identified defendant Brown as

the person she saw at the Newark Police Station on December 12,

2008. He was the same person who carjacked her car the previous

day, December 11, 2008. Arroyo-Maultsby emphasized no one told

her ahead of time she would see the man who the police had

arrested and charged with carjacking her car. She was there

only to sign the consent form to permit the police to search her

car.

Lieutenant Joseph Zeiser of the Newark Police Department

testified he saw Arroyo-Maultsby sitting and talking with one of

the detectives when he noticed she became visibly upset. He

walked over and asked her whether she needed any assistance or

medical attention. According to Zeiser, she told him "that was

the guy who carjacked me yesterday." Because Zeiser was not

aware of defendant's identity at the time, he asked Arroyo-

Maultsby to clarify. She stated, "the guy who just walked in

here with the two officers."

The State also called two expert witnesses as part of its

case-in-chief. Monica Ghannam, a forensic scientist from the

Union County Prosecutor's Office, and Thomas Chung, an expert in

firearms, ballistics, and tool mark examination. Ghannam tested

three items recovered inside the Infiniti: a pair of gloves, a

black and white glove, and a red baseball hat. She excluded

16 A-0211-12T1

Brown as a DNA contributor to the red baseball hat and to one of

the gloves. Chung examined five handguns, four of which were

police service weapons, as well as four spent casings discharged

from Holmes' service weapon. The non-police firearm was a Sig

Sauer semi-automatic pistol loaded with nine live rounds of

ammunition, one of which was a hollow point bullet. Chung found

this weapon initially inoperable until he cleaned it. He

testified the weapon was fully operable.

Brown testified in his own defense. He was eighteen years

old at the time of the carjacking. He denied having had

anything to do with the carjacking. Brown testified he stopped

to speak briefly with the occupants of the white Infiniti when

he noticed the unmarked police cars and decided to leave before

they suspected him of being involved in some wrong-doing. He

witnessed the unmarked police vehicles "box-in" the white

Infiniti. Brown testified he saw two men flee from inside the

Infiniti when the police officers stepped out of their unmarked

cars with their guns drawn.

From this point, Brown said he ran toward Willoughby Street

because he saw Detective Holmes chasing him with his gun drawn.

As he jumped over a gate, Brown testified Holmes shot him in the

foot. He ran to a nearby house where the police eventually

found him. Brown denied ever having a handgun on that day.

17 A-0211-12T1

Defense counsel also called Jason Glover, a friend of defendant

Brown. Glover testified Brown was at his house earlier that

day, prior to the arrest. He testified Brown left the house

approximately half an hour before Brown was arrested. Glover

further testified that about ten minutes before discovering

Brown had been arrested, he heard shots. Glover resides on the

corner of Aldine Street and St. James Place. Glover was twenty-

four years old at the time of trial. He admitted to having

prior criminal convictions. At the time he testified, Glover

was in a halfway house as part of a four-year sentence he

received for a third degree offense.

III

In the process of canvassing the area where the carjacking

occurred, Detective Ricci located an individual who claimed to

have witnessed Smith get out of the white car. He described

Smith as having a tattoo on his left forearm. Ricci and another

detective searched the Essex County Jail's website for the name

"Malik Smith" and found four matches. Defendant Smith was one

of those four matches. Although Ricci did not see the man who

ran from the passenger side of the Infiniti, he believed Smith

was a viable candidate to include in the photo array because he

matched the height, weight, and had a left forearm tattoo.

18 A-0211-12T1

Approximately one month after Brown's arrest, Lieutenant

Ross testified that Detective Ricci told him they had a suspect

in the carjacking case. Ricci wanted Ross to look at a

photographic7 array Hillside Detective Nancy Swider had prepared

containing six photographs of individuals matching the

description of the man Ross saw run out of the Infiniti from the

passenger-side of the car on December 11, 2008. Ross testified

Ricci did not discuss with him anything about the status of the

investigation at that point. Ross also did not speak to

Detective Corvelli about any of the individuals depicted in

these photographs.

Despite Lieutenant Ross's seniority in the Hillside Police

Department and experience as a police officer, Ross testified he

told Corvelli to explain to him the process and protocol

involved in identifying an individual through this procedure:

A. Yeah, I said we're not going to cut any

corners, I'm actually a witness, not your

boss at this point, and we have to do this

the proper way. And he went through the

whole packet.

. . . .

Q. . . . Lieutenant[,] [a]fter having those

instructions given to you, did you sign and

7

Ross used the term "six-pack" to describe a photo array

containing six photographs. The prosecutor identified the array

as S-92. Ross described it as "a group of six pictures that go

inside a wooden box, and you look at the pictures."

19 A-0211-12T1

date the instruction form with Detective

Corvelli?

A. Yes, I did.

Q. And then what happened?

A. Then he gave me that six-pack wooden box

there, and I went through each photograph,

identifying photo number 3.

. . . .

Q. Now, [Lieutenant] just for the record,

you opened window one, closed window one,

similar to --

A. Opened two, closed two. Opened three.

Yes, each one you have to open, and as per

the instructions, you have to close it

because, like I said, they don't want you

comparing photos and confusing yourself or

others, whatever.

Q. And you just returned to number 3?

A. I returned to number 3 and told him it

was number 3.

Q. And what is number -- who did you tell

Corvelli number 3 was?

A. Number 3 was the guy I grabbed that got

away from me when he fled from inside of the

highjacked vehicle.

The investigating detectives did not show the photo array

to Arroyo-Maultsby or her daughter Janna because neither were

able to describe the second individual who was in the passenger

side of the car. Ghannam, the forensic scientist from the Union

County Prosecutor's Office, found she could not exclude Smith as

20 A-0211-12T1

a major DNA contributor in material she recovered from a glove

recovered from inside the Infiniti by Detective Ricci. Ghannam

also opined she could not exclude Smith as a major DNA

contributor to the red baseball hat found in the Infiniti.

Smith did not call any witnesses and did not testify in his

own defense. The court denied his pretrial motion to exclude

the photo array identification.

IV

Defendant Brown, through counsel, raises the following

arguments:

POINT I

THE COURT COMMITTED REVERSIBLE ERROR WHEN IT

PERMITTED THE VICTIM TO VIEW THE DEFENDANT'S

ARREST PHOTO DURING TRIAL IN ORDER TO ELICIT

AN IDENTIFICATION.

POINT II

THE COURT ERRED IN NOT EXCLUDING TESTIMONY

THAT THE DEFENDANT WAS APPREHENDED IN AN

AREA WHERE A CARJACKED VEHICLE HAD BEEN

RECOVERED THE PREVIOUS WEEK. (Partially

Raised Below)

POINT III

A DELIBERATING JUROR'S BELIEF, BASED SOLELY

UPON RACE, THAT TWO AFRICAN-AMERICAN MEN

WHOM SHE SAW IN HER NEIGHBORHOOD WERE

CONNECTED WITH THE TRIAL AND MIGHT BE A

THREAT TO HER WELL-BEING, WARRANTED EITHER A

MISTRIAL OR HER REMOVAL AND THE SUBSTITUTION

OF AN ALTERNATE.

21 A-0211-12T1

POINT IV

THE SENTENCE OF 25 YEARS, 85% TO BE SERVED

BEFORE PAROLE UNDER NERA, WAS MANIFESTLY

EXCESSIVE.

Brown has also filed a pro se supplemental brief in which

he raises the following additional argument points:

POINT I

DEFENDANT WAS DENIED HIS CONSTITUTIONAL

RIGHT OF DUE PROCESS TO A FAIR TRIAL WHEN

THE POLICE STAGED EVENT AND TOLD THE VICTIM

THAT DEFENDANT WAS HER ATTACKER AND UNDULY

SUGGESTED THE IDENTIFICATION.

POINT II

THE VERDICT WAS AGAINST THE WEIGHT OF THE

EVIDENCE WHEREFORE THE CONVICTION MUST BE

REVERSED AND THE INDICTMENT MUST BE

DISMISSED.

POINT III

THE DEFENDANT WAS DENIED HIS RIGHT OF A FAIR

TRIAL BY PROSECUTORIAL MISCONDUCT, WHEREFORE

THE CONVICTION MUST BE SET ASIDE AND A NEW

TRIAL AWARDED.

Smith, through counsel, raises the following points in his

appeal:

POINT I

THE TRIAL COURT DEPRIVED MR. SMITH OF HIS

RIGHTS TO DUE PROCESS AND A FAIR TRIAL BY

FAILING TO DISMISS A DELIBERATING JUROR FOR

RACIAL BIAS AND FAILING TO VOIR DIRE THE

PANEL ADEQUATELY TO GUARANTEE THAT IT WAS

FREE FROM ANY RESULTING TAINT.

22 A-0211-12T1

POINT II

PROSECUTORIAL MISCONDUCT DURING SUMMATION

DEPRIVED MR. SMITH OF HIS RIGHT TO DUE

PROCESS. (Not Raised Below)

POINT III

THE LOWER COURT ERRED IN ADMITTING EVIDENCE

OF THE IMPERMISSIBLY SUGGESTIVE OUT-OF-COURT

INDENTIFICATION OF DEFENDANT BY LT. ROSS AND

THE RESULTING TAINTED IN-COURT

IDENTIFICATION, THEREBY DENYING DEFENDANT'S

RIGHTS TO DUE PROCESS AND A FAIR TRIAL.

(U.S. CONST. AMENDS. VI, XIV; N.J. CONST.

(1947), ART. I, pars. 1 and 10.)

POINT IV

THE TRIAL COURT'S FAILURE TO CHARGE THE JURY

ON CROSS-RACIAL IDENTIFICATION DEPRIVED MR.

SMITH OF HIS RIGHT TO DUE PROCESS AND A FAIR

TRIAL. (U.S. Const. Amends. V, VI, AND XIV;

N.J. Const. (1947), Art. I, Pars. 1, 9, and

10.) (Not Raised Below)

POINT V

THE TRIAL COURT DEPRIVED MR. SMITH OF HIS

RIGHTS TO DUE PROCESS AND A FAIR TRIAL BY

FAILING TO STRIKE REPEATED TESTIMONY THAT

THE POLICE FOUND THE INFINITI IN AN AREA

WHERE THEY HAD FOUND A CARJACKED VEHICLE ONE

WEEK EARLIER.

POINT VI

THE TRAIL COURT ABUSED ITS DISCRETION BY

IMPOSING A MANIFESTLY EXCESSIVE SENTENCE.

Both defendants raised the manner in which the trial court

handled the disclosure juror 4 made during the second day of

jury deliberations as a dispositive issue in these appeals. We

23 A-0211-12T1

agree. A comprehensive recitation of the event is necessary,

before we address the legal implications of the trial judge's

decision.

At the start of the afternoon session on the second day of

jury deliberations, the trial judge addressed the attorneys to

place the following event on the record:

THE COURT: Counsel, it is now 1 o'clock. A

sheriff's officer approached me during lunch

hour and told me that Juror Number 4 spoke

to him during the lunch hour and indicated

that she saw some men outside of her house

today and was inquiring whether it might

have anything to do with this case.

Out of an overabundance of caution, my

intention is to speak to that juror and ask

her what her concerns were, what she saw,

and whether what she saw would affect her

being able to continue in her deliberations.

Now, the issue becomes, do I do this in open

court on the record, or would counsel prefer

that I do it chambers, with just counsel and

myself present, putting it onto Court Smart

so that in case there would be any reticence

to speak freely, she might feel more free to

speak in chambers. What's your preference,

counsel?

[PROSECUTOR]: I think the second option

would be more appropriate.

[BROWN DEFENSE COUNSEL]: I would prefer to

do it in chambers because I think she would

be more free to speak.

THE COURT: [Inquires from Smith's counsel.]

24 A-0211-12T1

[SMITH DEFENSE COUNSEL]: Yeah, I would agree

with that. I don't know how complicated it

is for . . . the court reporter --

THE COURT: No, we're not going to be able to

use [the court reporter].

. . . .

I would put it on Court Smart, and we will

record it separately. I'll even set your

clients up with earphones, so that they can

hear what's being said when we go into

chambers.

[SMITH DEFENSE COUNSEL]: Okay. Thank you.

(Recess)

(Voir dire in chambers conducted,

[s]tenographically, utilizing the court

reporter.)

(Juror Number 4 enters the [c]ourt's

chambers.)

THE COURT: Please come on in. Take a seat

for a minute. I don't want you to be

nervous about this, but I was speaking to my

sheriff's officer, and he tells me that you

spoke to him during the lunch break today.

JUROR NO. FOUR: Yes, coming back.

THE COURT: And you talked about something

you saw this morning.

JUROR NO. FOUR: Yes, I went out at 7 o'clock

this morning to get into my car. As soon as

I turned the ignition on, two dark Black

fellas came out of the park. My car was

facing the parking lot that we use, and a

lot of people go in and jog. But I have

never seen these gentlemen before. One was

a very, very tall man, must have been 6[']

4["], 6['] 5["]. And he was carrying

25 A-0211-12T1

sneakers, and he was hurrying down the

street. The other one was sort of an older

man, and he was light skinned, but he was

Black, you know, lighter skin.

THE COURT: Okay.

JUROR NO. FOUR: And he just stood there. He

didn't do anything. I didn't -- I thought I

saw him looking at my car, but then he went

down the street too.

THE COURT: Did you connect that with this

case in any way?

JUROR NO. FOUR: Well, I just said isn't that

coincidental, I never saw anybody in the

park. And I said to myself, you know, I

just don't want to be nervous about this,

but --

THE COURT: But would what you saw affect

your ability to continue your deliberations

in this matter?

JUROR NO. FOUR: No, but I was concerned

about my wellbeing. I don't know if, you

know, I was going to be stalked someplace,

because I mean I don't know these people.

They certainly don't live around there, and

they don't hang around there. I'm from

Union, so . . .

THE COURT: And where in Union do you live?

JUROR NO. FOUR: I live at [a particular

point of reference][8] near [the same

particular point of reference], one long

block in from [the same particular point of

reference].

8

We have decided not to disclose the particular point of

reference to protect the juror's privacy.

26 A-0211-12T1

THE COURT: And was there anything that made

you connect what you saw today with this

case other than the race?

JUROR NO. FOUR: No, not unless because it's

a case that they're both Black, and I'm on

the case. And I said, gee, that's funny,

you know. I wasn't concerned about it when I

first went on the case, but I was wondering

if they would stalk you if they're found

guilty, whatever, you know, if they would go

after any of the jurors.

THE COURT: There's some anonymity in this,

in these procedures, and in my experience,

that never happens. I'm trying to put your

mind at ease in that regard. Have you

spoken to any of your fellow jurors about

this?

JUROR NO. FOUR: I did, you know, when we

were going out to lunch. And they said,

well, if you're a little concerned, you

could mention it to the police.

THE COURT: Who did you speak to?

JUROR NO. FOUR: I told [Juror 12] and [Juror

5] and the other one. I forget what her

name is, something like . . .

THE COURT: Okay.

JUROR NO FOUR: And she said, well, if you're

concerned -- she works right next [door] to

where I live, and she said that's not a

place where they would hang out. And so she

says, if you'd feel better about it, you

could mention it to one of the police

officers here. So that's what I did.

THE COURT: But what happened to you today,

that would not affect you continuing your

deliberations in this case?

27 A-0211-12T1

JUROR NO. FOUR: Not really, I guess. You

know, not really.

THE COURT: Counsel, do you have any

questions of [Juror 4]?

. . . .

[SMITH DEFENSE COUNSEL]: Hi, [Juror 4].

JUROR NO. FOUR: Hi, how are you?

[SMITH DEFENSE COUNSEL]: Fine. Thank you.

Are you concerned at all that if the jury

comes back with a certain verdict, that

there's going to be some bad consequences

for you?

JUROR NO. FOUR: Well, that's it, that's what

I was thinking of.

[SMITH DEFENSE COUNSEL]: So, you're worried

that if --

JUROR NO. FOUR: I was thinking along that

line, when I saw that this morning.

[SMITH DEFENSE COUNSEL]: And what are you

thinking now, the same way or different?

JUROR NO. FOUR: Well, no, I had it out of my

mind. I hope it's okay when I go home and

when I go out in the morning. It's not a

place where anybody hangs out. It's nothing

like that. It's a park. People go in and

walk around and jog, and it was kind of

early. It was 7 o'clock this morning.

[SMITH DEFENSE COUNSEL]: Okay.

JUROR NO. FOUR: So I thought I would mention

it, and it would be a little off my chest.

I was just thinking, well, if that does

happen or that could happen, if they would

bother you or somebody would bother you.

28 A-0211-12T1

THE COURT: But what would happen to you in

your thoughts, would that affect your

decision making, how you might decide this

case? Would you be more inclined to vote

one way or the other as a result of that?

JUROR NO. FOUR: No, because I really think

I would vote according to the evidence. No,

I tried to be honest.

THE COURT: Yes, but you're also --

JUROR NO. FOUR: I didn't fall back on that.

THE COURT: Counsel, do [you] have any

further follow up?

[PROSECUTOR]: No, Judge.

THE COURT: And you say you spoke to [Juror

12]?

JUROR NO. FOUR: And [Juror 5].

. . . .

JUROR NO. FOUR: [Juror 5] . . . works right

next to where I live, and she knows the

park, and she said it's not a place where

anybody hangs out like that.

THE COURT: [Juror 4], I'm going to ask you

to return back to the jury room. Don't

speak to anybody else about what we spoke

about right here.

JUROR NO. FOUR: Oaky, sure. Thank you very

much, Judge.

. . . .

(Juror No. Four excused from chambers.)

[SMITH DEFENSE COUNSEL]: Where should I

start? Now we have to talk to those people.

29 A-0211-12T1

THE COURT: Yes.

. . . .

PROSECUTOR: Well, Judge, I think any time

someone sits around and hears about a

carjacking, you then become more aware of

the way of the world. You can watch an

episode of Criminal Minds and go out the

next day and think like that.

THE COURT: Counsel, I talk to jurors after

[every] trial about customer service issues,

and something that is repeatedly asked of me

is whether there's going to be retribution,

one way or the other, depending on which

side they rule. This is something that is

intrinsically in every juror's mind

potentially. So, I don't have any great

concerns about this. Are you asking that

[Juror 4] be excused?

[SMITH DEFENSE COUNSEL]: I'm not sure. I

mean she seems like a little bit shaken

about it. So, I know she's saying it's not

affecting her deliberation, but she just

seems troubled by it. But I mean, you know,

based on -- I mean I'm thinking about the

comments that you and [the Prosecutor] made,

and I don't know what [Brown's Counsel]

thinks, but if everyone is satisfied that

she's comfortable.

THE COURT: I think she said she could decide

the case based upon the evidence. But she

does express, you know, her safety is a

matter of concern to her, but there's

nothing that she really connects with this

case.

[BROWN DEFENSE COUNSEL]: . . . I'm not

asking to remove her.

THE COURT: But we will continue the voir

dire. All right.

30 A-0211-12T1

[BROWN DEFENSE COUNSEL]: Yeah.

(Juror No. Three enters the [c]ourt's

chambers)

. . . .

THE COURT: [Addressing Juror 3] did you have

a conversation today with [Juror 4]?

JUROR NO. THREE: The older lady?

THE COURT: Yeah.

JUROR NO. THREE: About what she saw? Yes,

yes, we talked about it.

THE COURT: And she told you what she saw,

that she saw two Black men outside her home

this morning?

JUROR NO. THREE: Actually, the conversation

wasn't directly with me. She was talking

with [Juror 12], another juror, but I was

right next to them.

THE COURT: And would what she said affect

you in any way in your continuing to

deliberate in this matter?

JUROR NO. THREE: No.

THE COURT: Counsel have any follow up with

[Juror 3]?

[SMITH DEFENSE COUNSEL]: No, Judge.

[BROWN DEFENSE COUNSEL]: No.

THE COURT: Is she oaky though? I worry

about her. She's okay? Did she do anything

else than express what she saw that would

cause you concern for her ability to

continue?

31 A-0211-12T1

JUROR NO. THREE: She was very concerned, and

then when we walked, I was standing behind

her, and I told her not to worry about it, I

sincerely don't think she needed to be

worried that it has anything to do with this

case. I think she needed to be assured.

She said, are you sure, are you sure. I

said I'm pretty sure.

THE COURT: Thank you [Juror 3].

(Juror No. Three excused from chambers.

Juror No. Five enters the [c]ourt's

Chambers.)

THE COURT: [Addressing Juror 5] were you

present at lunch when [Juror 4], Juror

Number 4, was having a conversation with

another one of your fellow jurors?

JUROR NO. FIVE: Yes.

THE COURT: And she indicated that she had

seen something this morning.

JUROR NO. FIVE: She was talking to me.

THE COURT: She was talking to you.

JUROR NO. FIVE: And I said, let the officer

know about it. What she said is that she

saw two black young men in the park where

she lives, at around where she lives. I

know the area because I work near where she

lives.

THE COURT: You work nearby?

JUROR NO. FIVE: Nearby. The area is just

for seniors, and it has like three

complexes, and in the middle is like a park,

and on the other side is where the YMCA is

at. It sounded a little strange perhaps.

This area mostly is Italian and White

people. There really are no Black people

around there. So, she was concerned about

32 A-0211-12T1

it, and I advised her to let the police

officer know about this. She was kind of

nervous.

THE COURT: And what she expressed to you,

would that affect you in continuing your

deliberations?

JUROR NO. FIVE: No, not at all.

THE COURT: Not at all. Counsel have any

questions of [Juror 5]?

[PROSECUTOR]: No, Judge.

[BROWN DEFENSE COUNSEL]: No.

THE COURT: Thank you, [Juror 5], I'm going

to ask you . . . to go back to the jury room

and don't talk to your fellow jurors about

what we talked about.

JUROR NO. FIVE: Okay.

. . . .

[SMITH DEFENSE COUNSEL]: Judge, can we ask

this person if they think anybody else heard

it, if they have knowledge?

THE COURT: Yeah.

(Juror No. 12 enters the [c]ourt's

Chambers.)

THE COURT: Come on in. Hi . . . Please sit.

[Addressing Juror 12], [Juror 4] spoke to

you on lunch hour about something she saw

this morning?

JUROR NO. TWELVE: Yes.

THE COURT: And she expressed to you some

concern about what she saw. What she told

you, would that affect your ability to

continue on this jury?

33 A-0211-12T1

JUROR NO. TWELVE: No.

THE COURT: Did she appear to be reassured

when she mentioned it to the sheriff's

officer about what she saw? Has she

expressed - - or is she in any way acting as

if you don't think she's going to be able to

continue in her deliberations?

JUROR NO. TWELVE: I think she'll be able to

continue. I just think she was shook up a

little bit about it.

THE COURT: Was there anyone else present or

around? She told us that she was speaking -

- I think she said to you, and then [Juror

5] told her, advised her and that [Juror 3]

was nearby.

JUROR NO. TWELVE: Yeah, that was it.

THE COURT: Was there anybody else nearby

that could have heard it? Counsel have any

follow up with [Juror 12]?

[BROWN DEFENSE COUNSEL]: No.

[SMITH DEFENSE COUNSEL]: No.

[PROSECUTOR]: No.

[(Emphasis added).]

The trial judge excused Juror 12 and gave her the same

admonition he had given the other three jurors, to refrain from

discussing what had transpired with the remaining members of the

jury. The record indicates there was a request by the jury for

a read back of some testimony. After this concluded, Brown's

counsel addressed the judge in open court, but outside the

presence of the jury, and moved for a mistrial. Brown's counsel

34 A-0211-12T1

indicated his motion was based on Juror 4's comments, together

with the comments made by Juror 5. Alternatively, Brown's

counsel asked the court to remove Jurors 4 and 5, and replace

them with the two alternates. Smith's counsel joined in both

motions. Smith's counsel made the following argument in support

of her application:

I'm concerned - - and I'm also speaking on

my client's behalf after speaking to him.

I'm concerned about [Juror 5], some of her

comments, because it seems like she thought

it was very strange as well, and she's not

used to seeing Black people in that area.

And she's the one, in fact, that told [Juror

4] to say something to the officers. So,

I'm just concerned about how, either

consciously or subconsciously, that would

affect them. So, I would ask that they both

be removed.

The prosecutor opposed defendants' applications for either

a mistrial or for the removal of Jurors 4 and 5. The prosecutor

maintained that Juror 4 specifically declared that the

experience she had had earlier that same day did not affect her

ability to remain impartial. The prosecutor noted that in "the

realities of life and of jury duty . . . you hear facts that,

for many people in this box, are not part and parcel of their

everyday life."

The trial judge stated, "Prosecutor, I concur with you."

The judge again stated how it is his practice to speak to jurors

at the end of trials to discuss

35 A-0211-12T1

customer service issues, things that we

could do better in order to make their jobs

easier.

. . . .

But the thing that always rings true is that

someone always asks about juror safety and

whether there's potential retaliation for

verdicts, either by the State or by the

defense, based upon their findings, and we

always try to reassure them. I know that

one of the issues with the jury selection

method, I always try to tell my jurors to be

general in talking about - - for instance,

we don't . . . want to know what specific

job they work for, but we're looking for

general, generic information. We don't want

to know where they live. We want to know

who lives with them.

So, I think that juror safety, juror

anonymity to one extent is one of the

growing concerns in the country in terms of

jury selection.

[Juror 4] expressed that she saw two people

outside of her home today. She didn't

connect it in any way whatsoever with this

case, except that the two individuals she

saw were African-American and that the two

defendants on trial are African-American.

She made the connection in her mind, and she

said she was somewhat concerned about it.

[Juror 5] indicates that she works nearby

and that she somewhat fed into that concern

by saying it might be unusual for there to

be two African-Americans in that

neighborhood, but speak to the sheriff's

officer if you have any concerns.

Both individuals indicated that what was

said between them, what was observed by

[Juror 4] would have no part, would play no

role in their continued deliberations.

36 A-0211-12T1

[(Emphasis added).]

Brown's counsel emphasized that the facts showed Juror 4

saw a possible nefarious connection between the two African-

American men in a Caucasian neighborhood and her service as a

juror in a case involving two African-American defendants. The

judge rejected counsel's argument, stating: "We cannot deal at a

jury selection level with subconscious behavior. We tell the

jury that we understand that we expect to some extent people

have developed certain prejudices, some fixed ways of thinking .

. . The fact that they might does not exclude them from service

as jurors."

At the conclusion of the read back of certain testimony,

the judge addressed the jury in open court:

I want to make one comment, and I've already

ruled on this, but in terms of creating the

record, there's been an expression that

[Juror 4] -- and also [Juror 5] to a certain

extent -- expressed some racial

consciousness and potential racism by their

comments.

However, what they both said was that the

circumstances were unusual, that the area in

which they were, it would be unusual for

someone who was Black to be in that area. I

can't say -- I can't say that myself. I

don't know whether any counsel can say it,

but these individuals said that that was

unusual. And [Juror 4] expressed some

initial concerns with it. I don't think

that that's even an expression of racism.

So, your application is denied.

37 A-0211-12T1

[(Emphasis added).]

Approximately one hour later, the jury returned its verdict

findings defendants guilty on most of the charges reflected in

the verdict sheet.

V

Our Supreme Court has emphatically stated that "[a]

defendant's right to be tried before an impartial jury is one of

the most basic guarantees of a fair trial." State v. Loftin,

191 N.J. 172, 187 (2007); State v. Tindell, 417 N.J. Super. 530,

562-563 (App. Div. 2011). The Sixth Amendment of the United

States Constitution and Article I, paragraph 10 of the New

Jersey Constitution guarantee criminal defendants "the right to

. . . trial by an impartial jury." U.S. Const. amends VI, XIV;

N.J. Const. art. I, ¶ 10. "That constitutional privilege

includes the right to have the jury decide the case based solely

on the evidence presented at trial, free from the taint of

outside influences and extraneous matters." State v. R.D., 169

N.J. 551, 557 (2001).

The Court has stressed that jurors must be "as nearly

impartial 'as the lot of humanity will admit.'" State v.

Singletary, 80 N.J. 55, 62 (1979) (quoting State v. Jackson, 43

N.J. 148, 158 (1964), cert. denied sub nom. Ravenell v. New

Jersey, 379 U.S. 982, 85 S. Ct. 690, 13 L. Ed. 2d 572 (1965)).

38 A-0211-12T1

"A trial is poisoned at its inception if the jurors deciding the

case cannot review the evidence dispassionately, through the

light of reason." State v. Fortin, 178 N.J. 540, 575 (2004).

For this reason, "all doubts about a juror's integrity or

ability to be fair should be resolved in favor of removing the

juror from the panel." Loftin, supra, 191 N.J. at 187.

A trial court has discretion to remove and replace a

deliberating juror "because of [the juror's] illness or other

inability to continue." R. 1:8-2(d)(1). Although seemingly

vague and broad, the "inability to continue" standard must be

narrowly construed and sparingly applied. State v. Jenkins, 182

N.J., 112, 124 (2004); State v. Hightower, 146 N.J. 239, 254

(1996). "Because juror substitution poses a clear potential for

prejudicing the integrity of the jury's deliberative process, it

should be invoked only as a last resort to avoid the deplorable

waste of time, effort, money, and judicial resources inherent in

a mistrial." Hightower, supra, 146 N.J. at 254 (citing State v.

Lipsky, 164 N.J. Super. 39, 43 (App. Div. 1978)).

The reason behind a juror's inability to continue must be

"personal and unrelated to the juror's interaction with the

other jury members." State v. Valenzuela, 136 N.J. 458, 473

(1994).

Thus a juror cannot be replaced by an

alternate during deliberations merely

39 A-0211-12T1

because his position is at odds with the

other jurors, or because a party perceives

or receives information that the juror may

be unfavorable to that party, or because the

juror is unable to come to a decision by the

time all the other jurors have reached

theirs.

[Pressler & Verniero, Current N.J. Court

Rules, comment 4.3.2 on R. 1:8-2 (2014)

(citations omitted).]

Courts have sanctioned the removal and replacement of

deliberating jurors under the "inability to continue" standard

in a variety of different circumstances. See, e.g., State v.

Williams, 171 N.J. 151, 167 (2002) (juror complained of

financial hardship); State v. Miller, 76 N.J. 392, 401-02 (1978)

(juror was too nervous and could not render a fair verdict);

State v. Trent, 157 N.J. Super. 231, 239-40 (App. Div. 1978)

(juror under emotional distress because defendant reminded her

of her son), rev'd on other grounds, 79 N.J. 251 (1979).

Although a deliberating juror's bias or prejudice falls

within the "inability to continue" standard, the court, in

opting for substitution rather than a mistrial, must ensure, by

appropriate voir dire, that the other jurors were not tainted by

the removed juror. Pressler & Verniero, Current N.J. Court

Rules, comment 4.3.2 on R. 1:8-2 (2014). "When a jury is

exposed to extraneous information after deliberations have

begun, a mistral will almost always be required." Hightower,

40 A-0211-12T1

supra, 146 N.J. at 255, 264 (court erred in removing a juror and

not granting a mistrial where the juror informed the others that

the victim had children). See also State v. Adams, 320 N.J.

Super. 360, 365-69 (App. Div.) (court erred in removing a juror

and not granting a mistrial where the juror told the others that

police often beat accused criminals), certif. denied, 161 N.J.

333 (1999).

The decision to grant a new trial based on jury taint

resides in the discretion of the trial court. But, if juror

misconduct or bias has a tendency to influence the jury, a new

trial should be granted without further inquiry as to its actual

effect. R.D., supra, 169 N.J. at 558 (citing Hightower, supra,

146 N.J. at 266-67; Panko v. Flintkote Co., 7 N.J. 55, 61

(1951)). "The test is not whether the irregular matter actually

influenced the result, but whether it had the capacity of doing

so." Panko, supra, 7 N.J. at 61.

"A new trial, however, is not necessary in every instance

where it appears an individual juror has been exposed to outside

influences." R.D., supra, 169 N.J. at 559. In deciding whether

to grant a new trial, a trial court must consider:

the gravity of the extraneous information in

relation to the case, the demeanor and

credibility of the juror or jurors who were

exposed to the extraneous information, and

the overall impact of the matter on the

fairness of the proceedings. The inquiry

41 A-0211-12T1

about whether extraneous information had the

capacity to influence the result of the jury

requires an examination of whether there was

at least an opportunity for the extraneous

information to reach the remaining jurors

when that extraneous information is

knowledge unique to one juror who is excused

mid-trial.

[Ibid.]

When "it becomes apparent that a juror may have been

exposed to extraneous information, the trial court must act

swiftly to overcome any potential bias and to expose factors

impinging on the juror's impartiality." Id. at 557-58 (citing

State v. Bey, 112 N.J. 45, 83-84 (1988)).

The court is obliged to interrogate the

juror, in the presence of counsel, to

determine if there is a taint; if so, the

inquiry must expand to determine whether any

other jurors have been tainted thereby. The

trial court must then determine whether the

trial may proceed after excusing the tainted

juror or jurors, or whether a mistrial is

necessary.

[Id. at 558 (citing Pressler, Current N.J.

Court Rules, comment 2 on R. 1:16-1

(2000)).]

An appellate court reviews the trial court's jury-related

decisions under the abuse of discretion standard. Id. at 559.

This standard respects the trial court's unique perspective and

the traditional deference we accord to trial courts in

"exercising control over matters pertaining to the jury." Id.

at 559-60. However, "an appellate court is not bound by a

42 A-0211-12T1

determination when the 'particular circumstances present such a

strong likelihood of prejudice that, as a matter of law,' the

juror should have been removed." Loftin, supra, 191 N.J. at 192

(quoting State v. Biegenwald, 106 N.J. 13, 91 (1987)).

Here, the trial judge abused his discretion in failing to

remove Juror 4. The record is replete with unambiguous evidence

revealing Juror 4's racial bias. In her own words, she revealed

how she immediately construed the presence of two African

American men in her all white neighborhood as a menacing sign of

possible retaliation by defendants, merely because they were

also African American men. Even more disturbing, however, is

the trial judge's reaction to Juror 4's revelations. The judge

was not only oblivious to the juror's unmistakable racial bias,

but he actually endorsed the juror's misguided apprehensions.

The judge made his point of view on the subject of racial bias

and prejudice clear when he denied Brown's defense counsel's

motion to remove Jurors 4 and 5. "[W]e expect to some extent

people have developed certain prejudices, some fixed ways of

thinking."

The judge's impromptu, sua sponte "instructions" to the

jury, made soon after the judge had finished interviewing the

four jurors in his chambers, dispels any lingering doubt an

43 A-0211-12T1

objective viewer could have about the judge's willingness to

accept racial bias in a juror as an unavoidable reality of life.

I want to make one comment, and I've already

ruled on this, but in terms of creating the

record, there's been an expression by [Juror

4] -- and also [Juror 5] to a certain extent

- - expressed some racial consciousness and

potential racism by their comments.

However, what they both said was that the

circumstances were unusual, that the area in

which they were, it would be unusual for

someone who was Black to be in that area. I

can't say -- I can't say that myself. I

don't know whether any counsel can say it,

but these individuals said that that was

unusual. And [Juror 4] expressed some

initial concerns with it. I don't think

that that's even an expression of racism.

[(Emphasis added).]

These remarks coming from a sitting judge in a criminal

trial are plainly inappropriate under any circumstances, but

especially when they are uttered in a trial involving two

African American defendants. A juror's expression of "racial

consciousness and potential racism" must be immediately

repudiated, and the juror must be removed from the jury.

Thereafter, the trial judge must conduct a thorough,

comprehensive, and probing investigation to determine what

influence the juror's noxious sentiments had on other jurors.

Here, the judge's voir dire of Jurors 3, 5, and 12 was

completely inadequate and fell far short of what was required

44 A-0211-12T1

under the circumstances. The judge did not ask any open ended

questions. He began each of the interviews with these jurors

with a variation of the statement, "Juror 4 expressed to you

some concern about what she saw." The judge did not ask the

jurors to recite what Juror 4 had told them. His "examination"

of these jurors seemed designed to confirm his predisposition to

find Juror 4's irrational, racist fears after seeing two African

American men in her all white neighborhood as a completely

justified and understandable reaction on her part. The judge

accepted as sound and prudent Juror 5's advice to Juror 4 to

report to a Sheriff's Officer that she had seen two African

American men that morning in the park located outside her

residence.

It is clear the judge found Juror 4's fears in this respect

understandable. Indeed, the judge noted several times on the

record his practice of speaking to jurors at the conclusion of

trials and conduct his own version of a "customer service"

interview. The judge highlighted that in the course of

conducting these post-trial interviews, "juror safety and . . .

[the] potential retaliation for verdicts" was a key and

consistent concern expressed by most of the jurors he has

interviewed. This statement reveals, with indisputable clarity,

the judge's profound misapprehension of the significance of the

45 A-0211-12T1

sentiments expressed by Juror 4 and 5. The judge considered the

jurors' expressions of racial bias as legitimate fears to be

addressed systemically by providing more security and ensuring

the anonymity of the jurors. These views are utterly

irreconcilable with one of the core principles of this State's

judiciary, the delivery of equal justice under law to all of our

citizens.

We have taken the time and effort to describe the record in

these two consolidated appeals in great detail, because we

wanted to reveal the profound, highly prejudicial errors that

infected this trial, and by so doing, provide guidance to our

colleagues at the trial level on how to address these highly

contentious and profound issues when they arise. The essence of

racial profiling is to associate criminality or wrongdoing as an

aspect of a person's race or ethnic background. We have

unequivocally condemned this specious and hateful practice when

it was used by the law enforcement community in this State to

target minority motorists as they travelled our highways. We

must adopt the same policy of zero tolerance when a version of

such an odious concept contaminates, to any degree, the jury's

deliberative process. Racial bias is repugnant to any notion of

fairness or impartiality; it is the antithesis of justice under

the law.

46 A-0211-12T1

Under these circumstances, we are compelled to reverse and

vacate the convictions of both defendants Brown and Smith and

remand the matter for retrial. Because this outcome is

dispositive of this appeal, we do not address the remaining

arguments raised by both defendants.

Reversed and remanded. We do not retain jurisdiction.

47 A-0211-12T1

_______________________________

ASHRAFI, J.A.D., concurring in the result.

I concur in the court's judgment. During deliberations, a

juror expressed to other jurors and the judge an unjustified

fear of retaliation by defendants because of an event

unconnected to the trial and an invidious racial stereotype she

harbored. The impartiality of the jury was thus tainted.

Defendants' motion for a mistrial should have been granted.