The opinion
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3458-13T1
STATE OF NEW JERSEY, APPROVED FOR PUBLICATION
Plaintiff-Respondent, August 9, 2016
v. APPELLATE DIVISION
JAMES GLEATON, a/k/a WALTER E. GLEATON,
WALTER MASON,
Defendant-Appellant.
__________________________________________
Submitted December 2, 2015 – Decided August 9, 2016
Before Judges Fuentes, Koblitz and Gilson.
On appeal from Superior Court of New Jersey,
Law Division, Mercer County, Indictment No.
10-12-1314.
Joseph E. Krakora, Public Defender, attorney
for appellant (Kevin G. Byrnes, Designated
Counsel, of counsel and on the brief).
Angelo J. Onofri, Acting Mercer County
Prosecutor, attorney for respondent (Amanda
E. Nini, Special Deputy Attorney General/
Acting Assistant Prosecutor, of counsel and
on the brief).
Appellant filed a pro se supplemental brief.
The opinion of the court was delivered by
FUENTES, P.J.A.D.
Defendant James Gleaton was tried before a jury and
convicted of first degree possession of cocaine with intent to
distribute, N.J.S.A. 2C:35-5a(1); first degree distribution of
cocaine, N.J.S.A. 2C:35-5a(1); third degree possession of
cocaine, N.J.S.A. 2C:35-10a(1); and fourth degree maintaining a
narcotics nuisance, N.J.S.A. 24:21-21a(6). At sentencing, the
trial judge merged the first degree distribution of cocaine
conviction with the convictions for first degree possession of
cocaine with intent to distribute and third degree possession of
cocaine and sentenced defendant to a term of sixteen years with
a mandatory eight-year period of parole ineligibility. On the
remaining fourth degree conviction for maintaining a narcotics
nuisance, the judge sentenced defendant to a term of fourteen
months to run concurrent with the sixteen-year term.
This was the second time defendant stood trial on these
charges. The first trial held in March 2013 ended in a mistrial
when the jury was unable to reach a unanimous verdict on any of
the charges. The second trial began on Thursday, October 24,
2013. The State rested its case on the afternoon of the
following day, Friday, October 25, 2013. Defendant was the only
witness called for the defense when the trial resumed on Monday,
October 28, 2013. The jury began deliberating on Tuesday
morning, October 29, 2013. After three days of deliberations
mired by accusations of incivility against the foreperson by a
group of nine jurors, the trial judge decided to strip juror
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number 1 of her position as foreperson and of the commensurate
responsibilities attendant thereto. Soon thereafter the jury
returned a verdict finding defendant guilty on all of the
charges.
In this appeal, defendant argues the following events
prejudiced his right to a fair trial and warrants the reversal
of his conviction: (1) the jury's deliberations were tainted by
the disorder caused by a conflict between the foreperson and a
group of nine jurors led by juror number 10; (2) a juror's
personal account of an alleged incident of retaliation by drug
dealers unrelated to this case undermined the jury's ability to
impartially review the evidence presented at trial; (3) a
statement made by a law enforcement witness implied defendant
was the head of a narcotics "network"; (4) the trial judge's
evidential rulings violated defendant's right to present a
complete defense; (5) the cumulative effect of these errors
warrant the reversal of defendant's conviction; and (6) the
sentence imposed by the court was excessive.
After reviewing the record developed at trial, we are
compelled to vacate the jury's verdict and remand the matter for
a new trial. The trial judge's well-intended efforts to
ameliorate the acrimonious environment created by a conflict
between the foreperson and nine other deliberating jurors unduly
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interfered with the jury's autonomous role as the judges of the
facts. The record shows the trial judge was driven by an
overriding concern for creating a deliberative environment
capable of allowing the jury to return a unanimous verdict. As
a consequence, the judge viewed a juror's position against
further deliberations not as a legitimate stance, but as an
unreasonable impediment to the goal of reaching a unanimous
verdict. Because of "the weighty role that the judge plays in
the dynamics of the courtroom," State v. Figueroa, 190 N.J. 219,
237-38 (2007), a trial judge must guard against showing any bias
against dissent and in favor of unanimity. A jury's verdict
cannot be the product of coercion to any degree. Ibid.
Here, the trial judge's response to a note he received from
the foreperson on the second day of deliberations, announcing
the jury had reached "an impasse" based on an eleven to one
split in favor of continuing to deliberate, constituted
reversible error because it was not carefully calibrated to
avoid creating the impression that the court had taken sides in
favor of unanimity and against the one holdout juror. The trial
judge compounded this error in the manner he responded to a
group of nine jurors' complaints about the foreperson's
leadership style.
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The judge's decision to allow these nine jurors to elect a
"spokesperson" to convey their collective grievances exacerbated
the factionalism developing within the jury and improperly
elevated the status of the spokesperson within the jury. Even
more troubling was the judge's decision to allow the
"spokesperson" to discuss these matters with the judge and
counsel privately at sidebar, thereby excluding the eight jurors
he was elected to represent. This approach was needlessly
vulnerable to the personal bias of the "spokesperson" and
ultimately provided the court with an incomplete and potentially
skewed account of the foreperson's alleged shortcomings.
More importantly still, the judge accepted the veracity and
accuracy of the spokesperson's account to characterize the
foreperson as an "obstructionist" and consequently unsuitable to
continue to serve in this capacity. As we will explain in
greater detail, the judge's reliance on our decision in State v.
Rodriguez, 254 N.J. Super. 339 (App. Div. 1992), as authority to
support taking the extraordinary step of replacing juror number
1 as foreperson, was misplaced. Although we are satisfied the
judge's decision was well-intended, it nevertheless had the
capacity of being perceived by the foreperson as a retaliatory
act intended to coerce her to change her stance in the
deliberations to produce a unanimous verdict. The judge's bias
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in favor of unanimity was impermissibly coercive. Figueroa,
supra, 190 N.J. at 236.
I
The State's case against defendant was primarily based on
the testimony of two witnesses, Trenton Police Detective Ronald
Pope and defendant's friend, turned confidential informant, N.A.
Pope arranged to make a controlled purchase of cocaine from
defendant. N.A. agreed to become a confidential informant after
he was arrested by the Trenton Police Vice Enforcement Unit and
charged with unlawful possession of weapons and narcotics.
Detective Pope was the first witness called by the State.
He began his career as a sheriff's officer in the Mercer County
Sheriff's Office in 1996, before transferring to the Trenton
Police Department two-and-a-half years later. At the time of
defendant's arrest Pope was employed as a Detective by the
Trenton Police Department, working as a full-time task force
officer with the United States Drug Enforcement Administration
(DEA). He described to the jury the role N.A. played as a
confidential informant in the investigation that led to
defendant's arrest. Pope testified that "no promises" are made
to informants in exchange for their cooperation. The prosecutor
is the only one who has the authority to enter into an agreement
with an informant related to the charges they are facing and the
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terms of any sentence recommendation to the court. In this
case, the charges N.A. was facing in State Superior Court were
dismissed and federal narcotics and weapons possession charges
were filed against him in the United States District Court for
New Jersey.
Pope testified that based on his discussions with N.A., the
DEA Task Force decided to initiate a long term investigation to
focus on not only defendant, "but we also wanted to focus on his
associates as well as his whole network." This prompted an
immediate objection from defense counsel. When the trial judge
asked defense counsel whether he wanted to discuss the matter at
sidebar, counsel responded: "I don't think so, Judge."
Thereafter the trial judge sustained the objection and
instructed the jury to disregard this part of Pope's testimony
as "irrelevant." The judge also struck from the record Pope's
comments concerning defendant's "associates" and "network."
Based on information provided by N.A., Pope and his fellow
task force members began their "long term investigation" of
defendant's alleged distribution of illicit narcotics by
telephoning defendant to arrange a place to meet to discuss the
purchase of a quantity of cocaine. On September 24, 2009, at
approximately 11:00 a.m., Pope met with N.A. in the parking lot
of Freddie's Tavern in Ewing Township. Pope directed N.A. to
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call defendant on the phone using a digital recorder to record
the conversation. The first time N.A. called, defendant did not
answer and the call was redirected to voicemail.
According to Pope, N.A. told him this was normal behavior
and immediately called defendant a second time. That time,
defendant answered. Pope testified the conversation between
N.A. and defendant was recorded. The jury was given a copy of
the transcript of the conversation. During this initial
conversation, N.A. and defendant agreed to meet between 5:00
p.m. and 6:00 p.m. that same day.
The State's case centered on the "controlled buy" that took
place on September 24, 2009. As Pope explained, law enforcement
officers used $5700 of government funds to buy the illicit
narcotics. Pope testified that in the course of the recorded
conversation between N.A. and defendant, "it was determined
through [N.A.] that the going price would be approximately $37
per gram and we wanted to buy 150 grams." Law enforcement
agents monitored the exchange of the funds with defendant
utilizing a digital audio recorder and an audio transmitter.
They wanted "to establish stationary surveillance on the target
residence" while other officers were in their cars and able to
respond if necessary.
8 A-3458-13T1
Before the jury heard the audio recording, the trial judge
gave a cautionary instruction concerning the quality of the
recording, the possible distortions or interference caused by
ambient noise, as well as an individual person's manner of
speaking. The judge emphasized to the jury that they were to
use the transcripts only as a guide because "[t]he audio
recordings themselves [were] the primary evidence." Each juror
should therefore resolve any discrepancy between the
transcription of the conversation and the audio recording in
favor of the actual recording.1
Pope and DEA Special Agent Eric Brown met with N.A. at
approximately 5:15 p.m. at Freddie's Tavern in Ewing Township.
N.A. placed another call to defendant to solidify their plan.
The two men agreed to meet at defendant's residence. Trenton
Police Officer David Ordille established a stationary location
from which to monitor defendant's residence. Prior to sending
N.A. to meet with defendant, the officers searched N.A. to
confirm he did not have any money, weapons, or contraband on his
person or motorcycle. They outfitted N.A. with both an audio
digital recorder and an audio transmitter. According to Pope,
1
The two compact discs that contained the recording of these
interactions were moved into evidence by the State without
objection by defense counsel.
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the audio digital recorder is "very small" and was intended to
be concealed on N.A.'s person. Unfortunately, the officers
subsequently discovered that the recorder "did not work."
However, the transmitter was able to transmit the live
interactions between N.A. and defendant. Pope was unable to
explain why the digital recorder failed to work.
Officer Ordille was stationed in the woods approximately
100 feet from defendant's residence and twenty feet from the
property line. The police officers did not lose sight of N.A.
during the time he drove his motorcycle from the place where he
originally met Pope and Brown to when he arrived at defendant's
residence. Ordille saw defendant walk up to the residence and
sit on the front porch. He also saw N.A. arrive on his
motorcycle, park, and get off the bike. Although Ordille saw
defendant walk over to N.A. and engage in conversation with him
for a few minutes, he could not hear what was said. Following
the conversation, the two men entered the front door of the
residence. From his vantage point, Ordille could not see
defendant or N.A. while they were in the residence.
After approximately ten minutes, N.A. came out of the
residence through the front door, got back on his motorcycle,
and drove away. Ordille notified Pope and Brown that N.A. had
left defendant's residence. This was intended to signal them to
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continue to surveil N.A. from this point forward. Pope and
Brown followed N.A. back to the prearranged location at
Freddie's Tavern, without losing sight of him at any point along
the way.
Upon arriving at the Tavern, the law enforcement agents
retrieved the transmitters from N.A.'s person, collected the
cocaine he had purchased from defendant, and searched him and
the motorcycle once again for any additional contraband or
money. The cocaine N.A. purchased from defendant was in a
closed, clear plastic bag. It was subsequently tested and
identified as 149.8 grams, or 5.284 ounces, of cocaine.
Defendant stipulated the substance tested was cocaine in a
written statement the judge read to the jury.
On October 6, 2010, over a year after N.A. made the
controlled buy from defendant, the police executed a search
warrant to search defendant's residence. After conducting an
exhaustive search, the officers were unable to find any
contraband on the premises. The police nevertheless arrested
defendant that day based on the evidence recovered from the
controlled buy. At a pretrial hearing, the trial judge barred
defense counsel from informing the jury of the outcome of the
search of defendant's residence on October 6, 2010.
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The State called Brown and Ordille to corroborate and
expand upon Pope's testimony. The State called N.A. as its
final witness. N.A. expounded upon his role in bringing
defendant to the State's attention in consideration for a more
lenient sentence on his pending charges. As noted earlier, N.A.
was originally arrested on July 9, 2009, by the Trenton Police
Department. In an effort to help himself, he agreed to become a
confidential informant and assist state law enforcement officers
in conducting an investigation into defendant's alleged narcotic
activities.
On October 25, 2013, the day N.A. was scheduled to testify
at trial, the judge placed the following on the record:
[A]s you know there were two applications
made to the [c]ourt late yesterday after the
jury was sent home. After four p.m.
yesterday [defense counsel] on behalf of his
client requested police reports in regard to
the confidential informant [N.A.], who was
arrested on July 9, 2009. We know this
confidential informant is going to be called
as [a] witness by the State this morning and
obviously his credibility is a critical
issue in this case. . . .
For the first time defendant made a request
of this [c]ourt for the police reports
underlying that arrest on July 9, 2009. I
asked that [the prosecutor] provide that
material to the [c]ourt. He very promptly
emailed it to me after 4:30 last night.
Discovery consists of 65 pages, so I took it
home last night to review in detail and I've
made a decision that defendant is entitled
12 A-3458-13T1
to this discovery. I believe it will assist
him in attacking the credibility of [N.A.].
The court gave defense counsel a complete, un-redacted copy
of the report, after confirming the prosecutor did not have any
objections. Before physically turning the report over to
defense counsel, the judge noted there were certain allegations
in the police report that "did not result in any charges in
[the] federal indictment." In response, the prosecutor
acknowledged that "an undercover officer says that [N.A.]
approached his car with a gun . . . directly pointing the gun at
him. . . . [P]laying devil's advocate saying that [defense
counsel] is allowed to inquire into that, how is that relevant
to anything going on in this trial?" The judge responded it was
relevant to show "[N.A.] is testifying out of consideration."
Defense counsel argued that the facts as described in the
police report showed N.A. could have been charged under New
Jersey law with committing an aggravated assault against the
officer by pointing a firearm at him. Defense counsel
maintained the failure of the federal indictment to include this
charge was relevant to show it was part of the favorable
consideration N.A. received for his cooperation. N.A. testified
at the N.J.R.E. 104 hearing that he was aware that the Trenton
Police Department had charged him with "pointing a firearm at an
Officer Flowers." However, he did not discuss that particular
13 A-3458-13T1
charge with any state or federal law enforcement agent; no
promises were ever made regarding that charge; and he did not
know why the charge was not included in the federal indictment.
N.A. speculated the federal authorities did not include the
charge in the indictment because the offense was committed
against a Trenton Police Officer, not a federal agent.
Although the trial judge was initially inclined to allow
defense counsel to question N.A. about the failure to prosecute
this charge, he ultimately found N.A.'s speculation persuasive.
The judge gave the following explanation for his ruling:
[T]he Court has looked at and listened very
carefully to [determine] whether [N.A.] got
consideration for the dismissal of that
aggravated assault as a result of
cooperating.
He certainly has no knowledge. In fact, he
knew something that perhaps the Court didn't
know, is that perhaps the reason it wasn't
carried over is that had he pulled a gun on
a federal agent, a federal employee, as he
noted, perhaps it would have been carried
over, but it was just a lowly, so to speak,
Trenton Police Officer, so in that sense the
Court's going to rule that that cannot be
gone into on cross examination by the
defendant.
. . . .
The Court is also mindful of Rule 403, that
arguably [defense counsel] argues it's
relevant evidence, but I think getting into
that charge can be a little confusing to a
jury. It's not in the indictment and can be
a waste of time, and certainly the jury is
14 A-3458-13T1
going to hear all the prior criminal charges
for which this defendant's been indicted,
the fourth charges I just reiterated on the
record, plus consideration that he's
presumably receiving, to testify in this
trial and with the pending indictment
hanging over his head.
The State rested its case in chief at the conclusion of
N.A.'s testimony. Defendant was the only witness for the
defense. He denied ever discussing the sale of illicit
narcotics with N.A. during the recorded telephone conversations.
He testified that any references to selling or buying referred
to motorcycles because he and N.A. are both motorcycle
enthusiasts. He knew of N.A.'s reputation as a drug dealer and
about N.A.'s home being raided by the police from conversations
he had with his cousin.
A
FIRST DAY OF DELIBERATIONS
The jury reported to the trial court on the morning of
October 29, 2013 to begin deliberations. After reviewing the
verdict sheet and selecting the alternate, the trial judge
addressed juror number 1 as follows:
THE COURT: Juror Number 1, you . . . will
be the foreperson of the jury because of
your position in the jury box. If you
decide to take on this task, you will
preside over deliberations and tell us the
verdict when reached. Your vote carries no
greater weight than that of any other
deliberating juror. It will be your
15 A-3458-13T1
responsibility to lead deliberations. It is
also your responsibility to tell us what the
verdict is when the jury has reached it.
Juror Number 1, are you willing to take on
those responsibilities?
JUROR NUMBER 1: Yes, sir.
The jury began deliberating at 9:35 a.m. The matter
proceeded from this point without incident until the trial judge
informed the attorneys he had received a note from the jury at
11:21 a.m., stating: "Your Honor, we are unable to reach a
unanimous verdict on Count 1.” The note was signed by Juror
Number 1 in her capacity as foreperson. The judge reminded the
attorneys the jury had begun deliberating at 9:35 a.m., and had
taken a twenty-minute break when a beverage order was delivered.
Based on this, the judge calculated the jury had only actually
deliberated for approximately one hour and thirty minutes. He
thus intended to instruct the jury to continue deliberating by
reading "the model jury charge which is entitled, judges
instructions on further jury deliberations." Both attorneys
agreed.
The judge brought the jury into the courtroom and told them
he estimated they had been deliberating "approximately an hour-
and-a-half." He also reminded the jury that during the initial
voir dire "you all indicated you were available through this
week. So I'm going to send you back into the jury room for
16 A-3458-13T1
continued deliberations." The judge then read to the jury the
model charge our Supreme Court approved in State v. Czachor, 82
N.J. 392, 405 n.4 (1980):
It is your duty as jurors to consult with
one another and to deliberate with a view to
reaching an agreement if you can do so
without violence to individual judgment.
Each of you must decide the case for
yourself, but do so only after an impartial
consideration of the evidence with your
fellow jurors.
In the course of your deliberations, do not
hesitate to reexamine your own views and
change your opinion if convinced it is
erroneous. But do not surrender your honest
conviction as to the weight or effect of
evidence solely because of the opinion of
your fellow jurors or for the mere purpose
of returning a verdict. You are not
partisans, you are judges. Judges of the
facts.
The judge directed the jury to continue deliberating until 12:30
p.m., when they would recess for lunch.
The next communication from the jury came sometime after
the lunch recess in the form of two notes. As read by the
judge, the first note stated: "Your Honor, Juror Number 9
requests to see Your Honor as a question she quote does not want
the rest of the jury to hear. It is not regarding the case.
Close quote. Signed by the foreperson." The second note
stated: "'Your Honor, the jury requests to hear the full
17 A-3458-13T1
testimony of W' - - which I take to mean witness - - '[N.A.] or
a transcript of same.' Again signed by the foreperson."
With approval of both attorneys, the judge decided to bring
juror number 9 into the courtroom "to find out what's on her
mind and make a decision after I speak to her and hear from
counsel." Juror number 9 came into the courtroom and sat in
the empty jury box.2 The following colloquy ensued:
JUROR NUMBER 9: I just wanted to know what
is the role of a foreman in a jury
deliberation?"
THE COURT: Well, I read the instructions as
part of my charge. And when I sent in the
written charge, it's contained in the
charge.
. . . .
THE COURT: And I'll just give you the page
reference. You know the more I think about
it, it's not actually part of the charge.
Obviously, there's the charge I gave. And
after I speak with the attorneys, I can
consider rereading what's referred to as the
model charge says is the obligations and
duty of the foreperson.[3]
2
The record does not reflect that the judge directed the eleven
jurors remaining in the jury room not to discuss the case until
juror number 9 rejoined them. Such a cautionary instruction is
crucial to ensure the verdict reflects the considered judgment
of all twelve jurors. This stands in sharp contrast to the
detailed instructions the judge gave the jury at the end of each
day to refrain from discussing the case among themselves, even
via any form of social media, and not to discuss the case until
all twelve deliberating jurors were present.
3
Rule 1:8-8(b)(2) provides:
(continued)
18 A-3458-13T1
JUROR NUMBER 9: And if a juror member or
members feel that the foreman is doing more
than their actual role, how would that be
mentioned. Would that be - - would we bring
that to your attention or how do you work -
- or you work it out with the foreman? How
does that - - how do you handle that?
THE COURT: Well, I would want to speak to
the attorneys first. But once again, I will
read the duties and responsibilities to the
foreperson as I read before - -
JUROR NUMBER 9: Okay.
THE COURT: - - just telling these are your
responsibilities. And if there's a concern
by the jurors, you can send me a note.
JUROR NUMBER 9: Okay.
THE COURT: All right? Does that answer
your question?
JUROR NUMBER 9: Yes, it does. Thank you.
(continued)
In criminal cases, the court shall submit
two or more copies of its final instructions
to the jury for the jury's use in the jury
room during deliberations. The court may,
however, dispense with the submission of the
jury instructions in writing if it finds
that preparation of written instructions
will cause undue delay in the trial.
[(Emphasis added).]
It is the trial judge's obligation to ensure the written charges
submitted to the jury during deliberations contain the same
language as the charges read to the jury in the courtroom and
are otherwise complete in every respect.
19 A-3458-13T1
THE COURT: Okay. Thank you. You're
excused.
[(Emphasis added).]
After juror number 9 left the courtroom, the judge asked
both attorneys if it was necessary to reread the description of
the foreperson's duties and responsibilities he had read to the
jury earlier that same day. Although the prosecutor did not
take a definitive position, he did emphasize that if the court
decided in favor of this course of action, the instructions
should be reread to the entire jury. The prosecutor also made
the following prescient observation:
We're working kind of blind. Obviously, we
just know what Juror 9 has told us. I
guess, just thinking out loud, my concern if
the [c]ourt does reiterate that, if there's
an undercurrent in there, that's going to
bring it right to the surface. . . . Maybe
that does need to be read. As I think out
loud, I think because the concern has been
raised by one of the jurors that it does
need to be addressed.
[(Emphasis added).]
Defense counsel opposed rereading the instructions on the
role of the foreperson to the jury. Echoing the concern
initially mentioned by the prosecutor, defense counsel noted:
I think there are several problems with
bringing the jury back into remind them of
the role of the jury foreman. I mean the
jury foreman is going to be there and is
going to hear this again. And is going to
be basically reminded of her duty in front
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of 12 other jurors which is sort of almost
like an admonition that she's not doing her
job. If the woman who just came in has
concerns with how the jury foreman is doing
her job, they should work it out in the jury
room.
[(Emphasis added).]
The trial judge conceded that based only on juror number
9's account, it was "somewhat speculative as to what's going
on." To avoid the potential of undermining or embarrassing the
foreperson and to avoid the appearance that the court was taking
sides in some unknown conflict among jurors, both attorneys
recommended the judge simply send into the jury room the written
description of the foreperson's role without further comment.
The judge agreed.
The judge excused the jury for a fifteen-minute afternoon
break. Thereafter, the jury returned to the courtroom to hear
the playback of N.A.'s testimony, which took approximately
ninety minutes. It was 4:10 p.m. at the conclusion of the
playback. The judge decided to send the jury home for the day
without giving them the written charge on the role of the
foreperson. The judge informed the attorneys that after reading
the comments to Rule 1:8-4, he had discovered this court's
decision in Barber v. ShopRite of Englewood & Assocs., Inc., 406
N.J. Super. 32, certif. denied, 200 N.J. 210 (2009). Although
noting Barber was a civil case, the judge told counsel he wanted
21 A-3458-13T1
to read it overnight because he may decide not to send anything
further to the jury.
B
SECOND DAY OF DELIBERATIONS
The jury began its second day of deliberations on October
30, 2013, without any written instructions on the role of the
foreperson. Approximately thirty minutes after deliberations
had begun, the trial judge advised counsel the jury had sent out
two simultaneous notes. The first note came from the foreperson
and stated: "Your Honor, Juror Number 1 needs to discuss with
you conduct and discussions occurring by some jurors." The
second note was also signed by the foreperson. However, as the
judge noted, it was on behalf of a total of nine jurors
consisting of jurors numbers 10, 7, 8, 11, 3, 14, 9, 4, and 2;
the note stated: "Your Honor, jurors need to speak to Judge re
deliberations."
The judge decided to bring out the foreperson first alone,
telling counsel that he would remind her that,
there can be no discussion in court about,
you know, where they may lie in terms of
voting for guilt or innocence but hear what
she has on her mind, and then bring the
second group, the nine people she identifies
and, in effect, tell them that I could
select one of them to be the representative
or spokesperson or they could indicate to
the [c]ourt which one of the nine which
[sic] is to speak. And obviously then I
22 A-3458-13T1
would give whoever is the representative I
end up speaking to, I will obviously say to
the other jurors, is there anything else
which you think needs to be added.
Neither the prosecutor nor defense counsel objected to this
approach.4 The following colloquy reflects the judge's
interaction with the foreperson:
THE COURT: Good morning. You may be
seated. All right. Juror Number 1, I
brought you in because you just sent me two
notes and I'll read them for the record.[5]
. . .
Now, let me advise you, I don't want to hear
anything from you about where the jury
stands in voting guilt or innocence. That's
off limits. And I know from the note that
came to me yesterday, I know you've been
having a lively discussion and that's
typical and that's expected. But obviously
I and the attorneys are hopeful that this
jury can reach a unanimous verdict as to the
four counts. That's the hope in every
criminal case. But within those parameters
and knowing what's off limits, you can tell
me what you think I should need to know to
try to move this towards a verdict.
JUROR NUMBER 1: We have been deliberating
in earnest but information is being brought
in that should not be brought in,
information that was not discussed in this
courtroom, some suppositions, what ifs,
different scenarios that I think is totally
inappropriate in discussing in
deliberations. More - - and in addition
4
Once again, the record does not reflect that the judge directed
the eleven jurors remaining in the jury room not to discuss the
case while the foreperson was absent.
5
The trial judge read the contents of the notes into the record.
23 A-3458-13T1
that's troubling is the conduct of some of
the jurors in trying to sway the opinion of
the others to the point of slamming pens
down on the table, turning away from the
other juror because you're not allowing them
to speak. It's gotten a little nasty, to
put it lightly.
. . . .
THE COURT: Okay. Okay. Well, every
foreperson generally has a difficult job to
do and yours is especially difficult
because, you know, the evidence has led some
jurors in one direction and other jurors in
another direction. And, you know, I know
you understand your responsibilities. It
sounds like you're conducting them to the
best of your ability and this - - and the
evidence is such where reasonable minds can
differ. And I say that because that's true
of almost any case.
My thought is you identify nine additional
jurors. I was going to bring those nine in
and ask them, you know, if there's one
person they would like to identify as a
spokesperson who can, you know, presumably
say what's on their mind. Any reason why I
should not to do that?
JUROR NUMBER 1: No, Your Honor.
[(Emphasis added).]
At this point, the judge asked the foreperson if she had
any suggestions she could give him to assist her "in leading the
deliberations." In response, the foreperson directed the
judge's attention to the written jury charges that had been
given to the jury to take inside the jury room during
deliberations and focused on the part that reads: "It is your
24 A-3458-13T1
duty, as jurors, to consult with one another and to deliberate
with a view to reaching an agreement if you can do so without
violence to individual judgment." The judge then confirmed that
the foreperson wanted him to reread this language in the charge
to the jury. Thereafter, juror number 1 told the judge the
following:
JUROR NUMBER 1: And, Your Honor, the last
comment as an example of pointing to this
and us not deliberating or attempting to
intimidate was a question that was just
asked, are you afraid of retaliation. And,
you know, again, that's an example of things
that aren't appropriate and should not be
entering into our deliberations. How you
can get folks to just stick with the facts,
I've been trying but now I'm getting some
strong resistance.
THE COURT: Okay. And I'm asking the
question just because of what you just said,
would you like to continue as the
foreperson?
JUROR NUMBER 1: Yes.
After confirming with the "Senior Sheriff's Officer" that
the remaining eleven jurors were in the jury room, the judge
asked the foreperson to wait in another room while he discussed
the matter with the attorneys. Based on the foreperson's
comments about retaliation, the prosecutor was concerned about
matters extraneous to the evidence presented at trial affecting
the deliberations. After referring to the language in the jury
charges highlighted by the foreperson, defense counsel was
25 A-3458-13T1
concerned a group of jurors were conducting themselves in a
manner to intimidate and coerce other jurors into voting to
convict defendant. Defense counsel speculated that the
foreperson may be one of the jurors who is being targeted for
retaliation by this faction. The judge expressly stated he was
withholding any conclusion until he heard from the group of nine
jurors.
The nine jurors identified in the second note were brought
into the courtroom and seated in the jury box. The foreperson
was in a separate room by herself and two jurors remained in the
jury room. Thus the jury was now fractured into three separate
and isolated groups. After the judge read the two notes to the
group of nine, the following colloquy ensued:
THE COURT: What I'd like to ask is to begin
by speaking to one of you as, in effect, the
spokesperson and I can select one of you or
you can - - you can agree among yourselves
who would like to speak and it seems like,
from the show of pointing, that you have a
spokesperson and I'm going to hear from
Juror - -
JUROR NUMBER 10: Ten.
THE COURT: - - 10 . . . after I have the
exchange with Juror Number 10, if any of
you, the remainder of you, feel that you
have [] new [information] to add that Juror
Number 10 has not apprised me of, I will
give you that opportunity.
So Juror Number 10, tell me what's on your
mind.
26 A-3458-13T1
. . . .
PROSECUTOR: I'm sorry, Juror Number 10.
Your Honor, before we begin, could we just
caution the gentleman?
THE COURT: Oh, yes. I'm sorry. You're
right. Certain things are off limits.
You're not allowed to tell me, nor any
juror, where you stand. I don't want to
know who's in favor of conviction, who's in
favor of not guilty, and where you stand in
terms of numbers. That's off limits.
JUROR NUMBER 10: I understand.
. . . .
It's the conduct of the foreperson starting
yesterday morning. She's been disrespectful
pretty much to everybody who's on the bench
here.[6] I was told to shut up when I was
trying to voice an opinion. I believe then
there's been other issues where she's
unwilling to deliberate and when we try to
bring up deliberations, she sat there in a
corner, not willing to participate, just
fold her arms, saying I've mentioned - -
I've discussed things already, I'm not
willing to go any further. And it just - -
from yesterday morning, probably around ten-
thirty, it's just been beating heads against
the door. She's not willing to listen to a
discussion. She’s not willing to speak
nicely to anybody. And it was like that
yesterday and it's got like that again
today. She's treating us like we're her
five year old kids, pretty much how you can
put it down.
6
We presume this was a reference to the eight jurors sitting in
the jury box.
27 A-3458-13T1
And then there was - - there was one other
thing that I don't know if you want me to do
it sidebar or if you want me to bring it up
now that happened last week.
THE COURT: That happened last week?
. . . .
JUROR NUMBER 10: Yes. It's something that
happened and I - -
THE COURT: Well, let me ask you this.
Whatever you want to tell me, is it known,
as far as you know, to the other jurors?
JUROR NUMBER 10: Same jurors were in the
room and the same conversation took place.
Yes.
THE COURT: So other jurors - - whatever you
want to tell me, some other jurors were
present?
JUROR NUMBER 10: You know what I'm talking
about? Everybody know?
UNKNOWN JUROR: Yes.
JUROR NUMBER 10: Who was in the room at the
time?
UNKNOWN JUROR: I believe you were.
JUROR NUMBER 10: [Refers to another juror by
her first name]?
THE COURT: So you and two other jurors - -
I mean, the reason, if you're the only one
who knows it, I will bring you to sidebar.
[(Emphasis added).]
From this point forward, juror number 10 ceased to be the
"representative" or "spokesperson" of the group of nine jurors
28 A-3458-13T1
because the views he expressed to the judge were based
exclusively on his personal account of what transpired. The
following colloquy took place entirely at sidebar.
THE COURT: [Addressing juror number 10] All
right, sir. Go ahead.
JUROR NUMBER 10: So last Friday during
lunchtime, we were sitting in the meeting
room and we were discussing multiple things,
just as we do, nothing about the case. Then
Juror Number 1 mentioned that her - - we
were talking about mold remediation . . .
and then she starts talking about how her
neighbor's house, in 2007, was set on fire.
. . . .
. . . [A]nd I'm unclear whether it was a
police officer or a neighbor said to her,
well, this could be retaliation for how you
treat the drug dealers on the street and she
said . . . this could be based on the fact
that she sees drug dealers on the street and
she goes and knocks on their window and
tells them to move on, move down the street.
I thought it . . . was something that should
have been raised straightaway. I let it go
for a bit but based on comments that are
coming out during the [deliberations][7] right
now, it just seems like, based on the facts,
that that could be an influence in her
decision.
That's my opinion. It's something that has
been brought up this morning. . . .
THE COURT: Other than that comment that you
say Juror Number 1 made last Friday . . .
7
Juror number 10 actually said "arbitration." However, it
appears to us the juror simply misspoke and intended to say
"deliberations."
29 A-3458-13T1
once you started your deliberations
yesterday - -
. . . .
has that type of comment by any juror been
made?
JUROR NUMBER 10: There was a comment
probably about half an hour ago that said is
anybody afraid of retaliation in the case?
THE COURT: Referring to the jurors?
JUROR NUMBER 10: To the jurors based on
whatever decision was made. Some people
said yes, some people said no. And when she
was asked, she didn't respond. And then
when she was asked again, she didn't
respond. And then somebody said, can you
please respond, and she said no comment.
. . . .
. . . [T]hat's assuming - - that came up
once.
PROSECUTOR: Was that before or after your
notes got sent out?
JUROR NUMBER 10: That was . . . we only
thought there was one note that got sent
out. She wouldn't tell us what was in the
second note. She sent that without telling
anybody.
[(Emphasis added).]
In response to this allegation, the Judge handed the two
notes to juror number 10. We note, however, that the judge had
read the contents of both notes to all nine jurors when they
were first seated in the jury box. After examining both notes,
30 A-3458-13T1
juror number 10 identified the note that was signed by the group
of nine jurors as the only note he and the other eight jurors
had seen before. At this point, juror number 10 clarified the
extent of the jury's disunity by noting that two other jurors
had refused to add their names to the note signed by the group
of nine.
JUROR NUMBER 10: And then, as soon as I said
I want to speak to the Judge regarding
misconduct and how you're treating people,
these people just said I want to sign on, I
want to sign on, I want to sign on. It
pretty much went all around the room. There
was [sic] others that just said too many are
going in, we won't go, but everybody feels
the same way.
. . . .
THE COURT: . . . and the other note, C-9,
indicates Juror Number 1 would like to speak
to the Court.
. . . .
She did not make that aware to you when - -
JUROR NUMBER 10: We saw her. We saw her
write a second note. We said please tell us
what's on the second note and she licked the
envelope and sealed it and went to the door
and knocked.
At this point, the judge permitted the attorneys to question
Juror Number 10.
DEFENSE COUNSEL: . . . Sir, so there is a
discussion in the jury room about a fear of
retaliation?
31 A-3458-13T1
JUROR NUMBER 10: It was mentioned based on
the fact of what happened last week and the
conversation about how someone told her that
maybe it was retaliation for how she treated
- - how she went outside and knocked on drug
dealers' cars that we're assuming that she
knew where (indiscernible) house and told
them to move. Then one of the other jurors
who [was] also part of hearing [sic] the
conversation brought that up and said, okay,
is anybody scared of retaliation because
just based on the way it's been suggested -
-
DEFENSE COUNSEL: Right.
JUROR NUMBER 10: - - it's been - - you know,
that's why we came back in yesterday after
an hour and said we're done, locked.
DEFENSE COUNSEL: Okay. So I'm trying to
understand this correctly. Was the issue of
retaliation brought up by a juror other than
Juror Number 1?
JUROR NUMBER 10: Yes.
. . . .
DEFENSE COUNSEL: Okay. I appreciate your
honesty. Thank you.
[(Emphasis added).]
Through a series of follow up questions by the prosecutor
juror number 10 later clarified that the conversation concerning
retaliation occurred during the lunch break. Moreover, "only a
few" jurors were present when it occurred. After this point was
clarified, defense counsel asked the judge to address an issue
32 A-3458-13T1
outside the presence of juror number 10. The judge responded as
follows:
THE COURT: Okay. Before we do that, I have
some questions and I do this because, number
one, we're at sidebar, number two because .
. . you're the spokesperson. Do you think
there's anything I can do to assist the jury
in ultimately reaching a unanimous verdict
as to any one of the four counts?
JUROR NUMBER 10: No. I believe we have a
group of people who are willing to
deliberate except one.
THE COURT: Okay. And is that - - which
juror?
JUROR NUMBER 10: Juror Number 1.
THE COURT: Do you think . . . Juror Number
1 was made the foreperson because of her
seat, just by happenstance she was Juror
Number 1? You know, Juror Number 1, they're
always asked do you want to be the
foreperson?
JUROR NUMBER 10: She gloated. She gloated
last week that she would be the foreperson
of the trial.
THE COURT: Do you think you can - - you and
all the other 11 deliberating jurors - - can
have a discussion based upon the facts in
the case, based upon the evidence, and
that's the only thing, you know, you can
decide this case on, the evidence you heard
from the witness stand, exhibits marked into
evidence, can be no speculation - -
. . . .
no guessing? Do you think discussion could
or could not be more productive if there was
a different foreperson?
33 A-3458-13T1
JUROR NUMBER 10: Yes. But to be honest with
you, it's - - it would - - regardless of
whether or not it's a different foreperson,
it's whether or not that juror comes back
into that room. . . .
. . . .
. . . because it's - - it won't go any
further.
DEFENSE COUNSEL: You mean, as a - - I'm
sorry, Judge. As a juror, as opposed to a
foreperson?
JUROR NUMBER 10: There's 11 other jurors in
there and right now all 11 of us feel like
we've tried to do - - we've tried to go back
and forth, discuss different points, and
it's only 11 of us going through this so
it's an 11 person jury since yesterday
morning at nine-thirty.
THE COURT: So the bottom line is you feel
Juror Number 1 does not want to engage in
reasonable discussion?
JUROR NUMBER 10: The first thing she said
this morning - - somebody asked a question.
One of the things that she said is, I'm
going to say this once and then I'm done for
the day.
. . . .
DEFENSE COUNSEL: Is the jury or any members
of the jury considering facts that have not
been presented as evidence?
JUROR NUMBER 10: I would say there are
scenarios that are coming up that have not
been presented as evidence that Juror Number
1 is bringing up. Yes.
34 A-3458-13T1
DEFENSE COUNSEL: And only from Juror Number
1?
JUROR NUMBER 10: Yes.
. . . .
DEFENSE COUNSEL: Do you feel that you've
sort of given us an understanding that has
been sort of distilled from your fellow
jurors in a box?
JUROR NUMBER 10: If you polled every single
person in that room, you would get the same
comment. Prior to me coming in, I was
sitting closest to Juror Number 1 when I
heard the discussion that I mentioned
previously . . . so I proposed that I would
be the spokesperson for the group based on
that. And I think it was after I was told
to shut up this morning and then other
people's comments were being brushed off and
it was as though the foreperson was, it's
her way or the highway. But I believe every
single person that you polled, they would
give you the same response that I did.
. . . .
THE COURT: Based on your discussions of
deliberations yesterday and today, do you
believe any jurors - - when I say that, all
12 - - do you believe any juror has tried to
intimidate another juror?
JUROR NUMBER 10: No.
. . . .
THE COURT: And the fact only nine came in,
not 11, do you - - what do you attribute the
fact that two jurors had decided not to come
in, if you know?
JUROR NUMBER 10: I do.
35 A-3458-13T1
THE COURT: I don't want you speculating.
JUROR NUMBER 10: One of them was just, okay,
there's enough of you guys in, I don't need
to be a part of it, and just put his head in
his hands and said, let's get this over
with. And then another one was - - just
didn't say anything. Just - - she saw the
nine of us going in and that was it.
[(Emphasis added).]
The record reflects the judge initially directed juror
number 10 to rejoin the other eight jurors seated in the jury
box to discuss the matter privately with the attorneys.
Thereafter, the judge informed counsel he wanted to make sure
none of the eight jurors who were not privy to the lengthy
sidebar discussion with juror number 10 wanted to speak to him
about any issue concerning deliberations. As the judge phrased
it: "I'm going to give them that invitation." Both attorneys
approved this approach.
Defense counsel also wanted to hear from the two other
jurors who decided not to join the group of nine. However, the
judge was willing to rely on juror number 10's description of
these two jurors' reaction to the group's initiative to contact
the court. Again, quoting the judge: "Well, we heard the
reasons from . . . juror number 10." Defense counsel pressed
the issue by noting that according to juror number 10's
representations: "But the one juror was silent." Although the
36 A-3458-13T1
judge responded "I agree," he took no action to hear directly
from these two jurors.
The judge then addressed the nine jurors seated in the jury
box:
THE COURT: All right. Ladies and
gentlemen, and again I'm addressing the nine
jurors in the box, I had a discussion with
the attorneys, extensive discussion with
Juror Number 10, and you identified him as a
spokesman, he was very [eloquent]. I just
don't want to preclude - - [if] anyone feels
they wish to address me and the two
attorneys at sidebar, you can. Now, I know
you didn't hear everything that Juror Number
10 said at sidebar but does any one of you
feel strongly you would like to talk to me
about deliberations? Again, there can be no
discussion about how anyone is leaning
towards a - - on a verdict or anything of
that nature.
[The record indicates no verbal response.]
THE COURT: Okay. Well I don't see any
hands. I'm going to ask that the nine of
you go back into the room. Your beverage
has arrived so obviously when the beverage
arrives, there's no deliberations and
obviously, unless you have 12 together,
there's no deliberations. So let's take . . .
a 15 minute break. No deliberations.
[(Emphasis added).]
After the nine jurors left the courtroom, the prosecutor
addressed the court with his assessment of juror number 10's
account of events. He proposed the court reinstruct the jury
concerning its duty to decide the case based only on the
37 A-3458-13T1
evidence presented at trial, and not on comments made by a
fellow juror based on his or her particular life experience or
any similar extraneous matter. The prosecutor also suggested
the judge's instructions should not assess blame or imply that
any individual juror is responsible for the jury's alleged
inability to deliberate with civility and respect for opposing
points of view.
THE PROSECUTOR: I don't think any fingers
need be pointed in that discussion.
Everyone should hear it because I doubt
we're getting the full story from what looks
to be the two sides in this jury room, but
. . . they essentially have to act like
adults. They have to get past it and they
have to talk about the case. And if they
can't reach a verdict, they can't, but I
think they need to have the opportunity and
maybe just a refresher on what their job is
is going to help them do that.
The trial judge asked both attorneys whether, based on
juror number 10's account of events, they believed "Juror Number
1 should continue as the foreperson." Both defense counsel and
the prosecutor expressed skepticism about the court's authority
to remove juror number 1 as the foreperson of the jury. Defense
counsel in particular returned to the issue of retaliation,
noting "juror number 10 indicated that there was a polling in
the jury room about whether each juror feared retaliation."
On this basis, defense counsel moved for a mistrial or
alternatively for the trial judge "to read the deliberations
38 A-3458-13T1
charge" when the jury returned from the break. In response to
the judge's request for clarification, both attorneys confirmed
the "retaliation" at issue did not involve "one juror against
another." The retaliation allegedly discussed among the jurors
concerned "their day to day lives, if in fact they return one
verdict and not another verdict . . . ." It was the type of
retaliation that occurs "outside the courthouse."
Once the issue of retaliation was properly framed by the
parties, the trial judge returned to the tension between juror
number 10 and the foreperson. After restating the conflicting
accounts given by jurors 1 and 10 as to who was responsible for
the state of incivility in the deliberative process, the trial
judge decided to bring the twelve deliberating jurors and the
alternate into the courtroom, and reread to them the part of the
charge that describes their duty as jurors
to weigh the evidence calmly, without
passion, prejudice, or sympathy. Any
influence caused by these emotions has the
potential to deprive both the State and the
defendant of what you promised them, a fair
and impartial trial by fair and impartial
jurors. Also speculation, conjecture, and
other forms of guessing play no role in the
performance of your duty.
The judge also intended to recharge the jury on the role of
the foreperson. He planned to reiterate and emphasize that
juror number 1 was designated foreperson by virtue of occupying
39 A-3458-13T1
a seat number in the jury box. He also planned to supplement
the model charge with the following language taken directly from
our decision in Barbe, supra:
[The] foreperson['s] . . . role [is] to
maintain order in the deliberations, marshal
the jurors' votes on the issues presented on
the verdict sheet and to render the verdict
on behalf of the jurors. Otherwise, the
jury foreperson is only one vote of six and
his opinions have no greater weight than
those of the other jurors. It is not the
role of the foreperson to explain legal
concepts to the other jurors.
[406 N.J. Super. at 56 (citations omitted).]
Finally, the "last thing" he intended to read to the jury was a
modified version of the standard charge on the role of the
foreperson, deleting the language that informs the foreperson:
"it is your responsibility to lead deliberations. It is also
your responsibility to tell us what the verdict is when the jury
has reached it."
After informing counsel of this decision, the judge denied
defendant's motion for mistrial "without prejudice." Noting for
the record that the previous day the jury had sent out a note
indicating their deliberations had reached an impasse, the judge
told the attorneys he planned to read the charge entitled
"Judge's Inquiry When Jury Reports Inability to Reach Verdict"
approved by the Supreme Court on June 30, 2013, three months
before the start of the trial.
40 A-3458-13T1
At the end of this lengthy interlude in deliberations, made
even longer by the discussion that followed juror number 10's
sidebar revelations concerning retaliation, a Sheriff's Officer
reminded the judge that Juror Number 1 had been kept alone in a
room, separated from the rest of the jury during the entire
time. The judge decided to reconvene the jury after a fifteen-
minute recess and instructed the Sheriff's Officer accordingly.
At the end of the recess, the judge brought the foreperson into
the courtroom by herself and again described to her "the
responsibilities of the foreperson." The judge then addressed
juror number 1 directly as follows:
THE COURT: Based on everything you know, do
you think you can carry out that
responsibility? In other words, lead
deliberations, give everyone a chance to
speak . . . and see if you can develop a
consensus. Obviously, I know when I had you
here a little while ago, you told me your
concerns and I’m concerned for your
concerns. Let me ask you once again, do you
think you would like to continue this
responsibility of leading deliberations and
give everyone a chance to speak up and
discuss it in a meaningful manner?
JUROR NUMBER 1: Yes, but may I ask a
question?
THE COURT: Absolutely.
JUROR NUMBER 1: When - - but when it gets
beyond the scope of what we were to do, how
would you -
41 A-3458-13T1
In response, the judge informed the foreperson he planned
to recharge the jury regarding their duty not to "speculate,
conjecture, [or engage in] other forms of guessing" about
matters outside the evidence presented at trial. He emphasized
that the verdict must be based on the evidence and must be
unanimous. The judge then again asked juror number 1: "[D]o you
feel . . . you can lead deliberations in a meaningful manner?"
She responded: "Yes."
After the twelve deliberating jurors were seated in the
jury box, the judge again instructed them at length about the
manner the foreperson is selected as described in Rule 1:8-4 and
her role and responsibilities in this capacity. With respect to
the verdict sheet, the judge informed the jurors that "until you
can come to a unanimous verdict on Count 1, there's no reason to
go to Count 2, 3, and 4, and I know you figured that out."
(Emphasis added). The judge also noted his concern regarding
the note the jury had sent out the previous day, reporting they
were unable to reach a unanimous verdict on Count 1. After
noting the jury had not sent out a similar note that day, the
judge asked the jury the following question:
But ladies and gentlemen, do you feel that
further deliberations will be beneficial or
do you feel you've reached a point at which
further deliberations will be futile? I'm
going to ask you to return to the jury room
and confer and advise me in a decision in
42 A-3458-13T1
another note as to whether you wish to
continue deliberating or whether you feel
that would be completely nonproductive.[8]
And I ask the foreperson, whenever you send
a note to me, always read it to your fellow
jurors so everyone can know exactly what's
being sent to me, if there's any - -
because, obviously, I want the note to
represent the thoughts of all 12. All
right.
After the passage of an unknown period of time, the judge
received two more notes from the jury. Although both notes were
written and signed by the foreperson, one note conveyed the
following message from juror number 7: "Your Honor, Juror Number
7 would like to talk to you re instructions on deliberations."
The second note read: "Your Honor, we have reached an impasse.
Eleven jurors want to continue deliberation. One juror does not
want to continue deliberations." After conferring with counsel,
the judge decided to address first the concerns expressed by
juror number 7.
It is important to emphasize that juror number 7 was one of
the nine jurors who sought to speak to the court earlier in the
day "re deliberations." However, by selecting a "spokesperson"
to speak for the group instead of speaking directly with each
8
The judge's instructions here were a verbatim recitation of the
language in the model jury criminal charge entitled: "Judge's
Inquiry When Jury Reports Inability to Reach Verdict," approved
by the Supreme Court on June 30, 2013.
43 A-3458-13T1
individual juror, the court never heard her actual views on the
subject.
THE COURT: Tell us what's on your mind?
JUROR NUMBER 7: Your Honor, you just read to
us a whole bunch of - -
THE COURT: Instructions.
. . . .
JUROR NUMBER 7: And one of it was that we
had to keep an open mind and I thought that
was very important for us once we're going
back into that room and I just didn't know
how to approach that because there are some
people in the room who will not - - who do
not want to keep an open mind and who have
emphatically said that they will not keep an
open mind and that just upsets me because we
are very insistent to do justice and I think
if it's your instructions for that, . . . I
just felt I had to bring it to your
attention.
THE COURT: Is there anything you can
suggest to the [c]ourt, other than what I've
already done, and we've read some
instructions giving you additional . . .
instructions, anything else that comes to
mind?
JUROR NUMBER 7: I cannot and that's why I'm
coming to you.
. . . .
And that's how a majority of us do feel,
that we are willing to keep an open mind.
We are willing to talk and it's so hard that
when someone just comes back to you and
says, no I'm not.
44 A-3458-13T1
THE COURT: Let me ask you this. I heard
from Juror Number 10 before, as well as
Juror Number 1, separately. The [c]ourt has
some limited discretion in terms of
appointing a different foreperson. Do you
think discussions would be more productive
leading to a possible verdict if there was a
different foreperson?
JUROR NUMBER 7: Well, yes and no. Yes,
because I think we might be able to . . .
try and discuss and have it in a non-
confrontational way; no because I think the
juror who has emphatically said no, they
don't want to do it is not going to change
their mind . . . . I personally posed the
question that why can we not talk about
this, even if it means that we have to talk
for 150 times, because maybe the 151st time,
some - - a phrase that you may say might
open the lightbulb, whatever, and the juror
came back and said no.
[(Emphasis added).]
After excusing juror number 7, the judge discussed with the
attorneys the note indicating the jury had reached an impasse.
After acknowledging the eleven-to-one status of the jury's
deliberations, the prosecutor declined to characterize the
situation as "futile." The prosecutor argued the "11 people in
there willing to try" deserved "a chance to talk to the
individual . . . who has indicated that they don't want to
review the facts of the case . . . ." Citing our decision in
State v. Rodriguez, supra, the prosecutor suggested the court
consider removing juror number 1 as the foreperson of the jury
45 A-3458-13T1
and appoint or have the jury elect a different juror as
foreperson.
The prosecutor conceded that "Rule 1:8-4 does not
contemplate the replacement of a [jury's] foreperson." He
nevertheless argued it was "within the ambit of the judge's
discretion, particularly in light of [Rule] 1:1-2 which
authorizes relaxation of the rules to appoint a new foreperson
where there were obvious difficulties with a member of the jury
originally designated." According to the prosecutor, an
individual juror who refuses to continue deliberating after the
second day of deliberations "is prejudicial to both the defense
and the State, and if that can be overcome, then we should be
able to get a verdict."
Defense counsel urged the trial judge to declare a mistrial
because the jury had announced it was "deadlocked." Defense
counsel argued:
Eleven people are willing to continue and
one is not. So that is an impasse and the
instruction that the [c]ourt read to them
before they went out was to go back, try to
confer, and then advise of your decision in
another note. Another note came out, we're
at an impasse, and I think the appropriate
thing to do now is to declare a mistrial.
The trial judge denied defense counsel's application for a
mistrial and decided to replace juror number 1 as foreperson.
Acknowledging Rule 1:8-4 is "silent on the issue of replacing
46 A-3458-13T1
the foreperson," the judge nevertheless found support for this
decision in Rodriguez. The judge specifically cited Rodriguez's
reliance on Rule 1:1-2 as justification for relaxing the
mechanism for the designation of a foreperson under Rule 1:8-4
"where there were obvious difficulties with the member of the
jury originally designated." Rodriguez, supra, 254 N.J. Super.
at 350.
Focusing on the "obvious difficulties" required to remove
juror number 1 as foreperson, the trial judge made the following
findings:
In terms of difficulties, when I heard Juror
Number 10 at sidebar, he indicated the
foreperson was somewhat of an obstructionist
in permitting deliberations go forward. She
was not leading deliberations as I charged
her to do. So for that reason, I am going
to appoint someone else . . . .
Defense counsel objected to the replacement and argued for
a mistrial, especially in light of juror number 7's allegations
that there "were some people among or in the jury who will not
keep an open mind." Both attorneys suggested if the court was
inclined to replace the foreperson, it should be left to the
jurors to elect. When the jury returned to the courtroom, the
judge acknowledged receipt of the note from juror number 7 and
the other note indicating the jury was at an "impasse," with
47 A-3458-13T1
eleven jurors wishing to continue deliberating, and one juror
not willing to go any further.
The judge also mentioned the time consumed to respond to
the various notes sent by both the jury and individual jurors,
meant the jury had not had a long time to actually deliberate.
He had thus decided to give the eleven of twelve jurors the
opportunity to continue deliberating after lunch. The judge
then made the following statement:
Also, I'm making a decision to have a
different foreperson and I say that, Juror,
not in criticism of you. I just say
sometimes it's good to hear from another
voice so I don't want you to take it as
criticism. Whatever your convictions are
are your convictions, whatever 12 of you,
your convictions are. I've, you know, read
the instructions over this morning as to how
you're to conduct your deliberations and you
have a copy of the charge with you . . . .
Look at that to assist you.
As you know, any verdict can be based solely
on the evidence you've heard from the
witness stand, the exhibits marked into
evidence. Anything else is not material,
not relevant, to your deliberations and
ultimately hopefully a unanimous verdict.
But in general I'm following a general rule
and, for whatever reason - - let's say Juror
Number 1 had been selected as an alternate.
You go right down the row. So following
that, Juror Number 2, I'm going to ask you
if you would be willing to take on the
responsibilities of a foreperson and, again,
I can review with you responsibilities.
Would you be willing to take on those
responsibilities?
48 A-3458-13T1
JUROR NUMBER 2: Yes.
Deliberations resumed after the lunch recess.9 The jury
sent out a note at 2:39 p.m., requesting a playback of parts of
N.A.'s testimony. The judge advised the attorneys he planned to
send the jury home "at four o'clock, right on the dot." As the
judge was about to reconvene the jury to announce the recess for
the day, the jury sent out another note requesting "to hear the
testimony of Officer Pope and DEA [Agent] Brown." The judge
informed the jury they would hear the playback the following day
and recessed for the day. We pause to note that the courtroom
where this case was tried was equipped with video recording
equipment. Thus, the playback enabled the jury to see and hear
the witnesses.
C
THIRD DAY OF DELIBERATIONS
The final day of the trial began with an hour delay in
arranging the playback of Pope's and Brown's testimony.
Although the note from the jury simply requested to replay "the
testimony" of these two witnesses, the judge did not make any
9
In the interest of completeness, the record shows the alternate
was returning to the jury room and joining the deliberating
jurors during the various recess periods. The judge questioned
the alternate when defense counsel brought this irregularity to
his attention. The alternate told the judge he had not discussed
any aspect of the case with the deliberating jurors.
49 A-3458-13T1
attempt to narrow the scope of the request. Once the twelve
jurors were seated in the jury box at 10:10 a.m., the judge told
the jury the court clerk estimated the playback of Pope's entire
testimony "could be as long as two-and-a-half hours." The
playback of Brown's entire testimony would take approximately
forty-five minutes. The judge told the jury he foresaw "going
for about two hours, because I think that's your limit . . . ."
A one-hour lunch recess was scheduled to start at twelve noon
and the jury would then reconvene to hear the remaining part of
the playback.
After the playback was complete, the jury would resume
deliberations. However, the judge informed the jury that
"because of a commitment I have unless I get word from you
otherwise . . . I'm going to be sending you home a little before
3:30 [p.m.] today." The judge also suggested the jury could
resume deliberations after Pope's playback was completed; they
could then break again to view Brown's playback, and resume
deliberations after Brown's playback was completed.
The playback did not proceed as the judge expected. After
an unexpected bathroom break, the judge decided to send the jury
back at the end of Pope's playback around 12:05 p.m., "to
deliberate for a short while before you have [your] lunch
break." Acknowledging the jury had requested a playback of both
50 A-3458-13T1
Pope's and Brown's testimonies, the judge nevertheless decided
to
give you a short time, if you decide you
want to deliberate over what you heard so
far, or you could send me a note, no, we
want to come right back into court, as you
indicated late yesterday, before we had a
late start today of Mr. Eric Brown.
Either way, you're going to be either be
deliberating in the jury room or in the
court listening to additional playback
you've requested until about 12:30 [p.m.]
When the jury left the courtroom, the judge told the
attorneys he decided to take this measure because he believed
the jury was tired after viewing and listening to two hours of
video playback testimony. The jury reconvened after lunch and
requested to view the playback of Agent Brown's testimony. The
playback ended at 2:25 p.m., at which time the court again
recessed to allow the jury a beverage break.
After the passage of an undisclosed amount of time, the
jury sent out a note reporting they had reached a unanimous
verdict.
II
Against this record, defendant now appeals raising the
following arguments:
POINT I
THE DEFENDANT'S FEDERAL AND STATE
CONSTITUTIONAL RIGHT TO DUE PROCESS OF LAW
51 A-3458-13T1
AND TO A FAIR AND IMPARTIAL JURY WAS
VIOLATED.
A. THE JURY DELIBERATIONS WERE
IRREMEDIABLY TAINTED BY A JUROR'S
PERSONAL ACCOUNT OF A BURNING
HOUSE RESULTING FROM DRUG DEALER
RETALIATION, FOLLOWED BY A
DISCUSSION AMONG JURORS ABOUT
THEIR PERSONAL FEARS OF DRUG
DEALER RETALIATION.
B. THE TRIAL COURT FAILED TO VOIR
DIRE A JUROR WHO REPORTED THAT HE
JUST WANTED TO "GET IT OVER WITH"
AND FAILED TO VOIR DIRE OTHER
JURORS WHO REPORTED THEY FEARED
DRUG DEALER RETALIATION.
C. THE TRIAL COURT'S INSTRUCTION
TO THE JURORS ADVISING THEM TO
CONTINUE THEIR DELIBERATIONS WAS
ERRONEOUS AND PREJUDICIAL. (Not
Raised Below)
D. A TRIAL PROCEDURE IN WHICH
JURORS IGNORE INSTRUCTIONS AND
INJECT EXTRANEOUS MATTERS INTO THE
DELIBERATION PROCESS UNDERMINES
PUBLIC CONFIDENCE IN THE
ADMINISTRATION OF JUSTICE.
(Partially Raised Below)
POINT II
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW
AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO
THE UNITED STATES CONSTITUION AND ART. I,
PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS
VIOLATED BY THE PROFFER OF EXTRAORDINARILY
PREJUDICIAL TESTIMONY PERTAINING TO THE
DEFENDANT'S ALLEGED DRUG "NETWORK" AND
"ASSOCIATES."
52 A-3458-13T1
POINT III
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW
AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO
THE UNITED STATES CONSTITUTION AND ART. I,
PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS
VIOLATED BY THE TRIAL COURT'S RULING BARRING
THE DEFENDANT FROM PRESENTING A COMPLETE
DEFENSE.
A. THE FACT THAT THE POLICE
FOUND NO EVIDENCE OF DRUGS OR
DEALING WHEN THEY SEARCHED THE
DEFENDANT'S ALLEGED DRUG NUISANCE
HOUSE WAS RELEVANT AND PROBATIVE
OR WHETHER THE DEFENDANT HAD
MAINTAINED A DRUG NUISANCE
PROPERTY AT THAT LOCATION.
B. THE FACT THAT THE LONE
WITNESS TO THE ALLEGED DRUG
TRANSACTION WAS NOT PROSECUTED FOR
POINTING A GUN AT A POLICE OFFICER
WAS RELEVANT EVIDENCE OF BIAS AND
SHOULD HAVE BEEN ADMITTED.
POINT IV
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW
AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO
THE UNITED STATES CONSTITUTION AND ART. I,
PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS
VIOLATED BY THE ACCUMULATION OF TRIAL
ERRORS. (Partially Raised Below)
POINT V
THE SENTENCE IS EXCESSIVE.
A. THE TRIAL COURT IMPROPERLY
BALANCED THE AGGRAVATING AND
MITIGATING CIRCUMSTANCES.
B. THE TRIAL COURT MADE FINDINGS
OF FACT TO ENHANCE THE SENTENCE.
53 A-3458-13T1
In his pro se supplemental brief, defendant raises the
following additional arguments:
POINT I
A DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS
GUARANTEED BY THE FOURTEENTH AMENDMENT TO
THE UNITED STATES CONSTITUTION AND ART. I,
PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS
VIOLATED BY THE TRIAL COURT'S RULING BARRING
A DEFENDANT FROM PRESENTING A COMPLETE
DEFENSE
A. THE FACT THAT THE POLICE
VIOLATED THE FOURTH AMENDMENT TO
SEARCH A DEFENDANT'S ALLEGED DRUG
NUISANCE HOUSE WAS RELEVANT
B. THE FACT THAT THE BODY
WIRE RECORDING COOPERATED WITH THE
DEFENDANT'S TESTIMONY WAS RELEVANT
We agree with defendant that the jury's deliberative
process was irreparably tainted by the strife that developed
between the foreperson and a group of nine jurors. This discord
overwhelmed the deliberative process with extraneous matters and
irreparably undermined the reliability of the verdict. The
steps the trial judge took to address this situation, while
well-intended, impermissibly intruded into the jury's autonomous
role as judges of the facts. Our analysis is guided by the
following principles:
[A defendant's] right to a jury trial
is one of the founding principles of our
Republic and is guaranteed by both the Sixth
Amendment of the Constitution of the United
States, United States v. Gagnon, 470 U.S.
54 A-3458-13T1
522, 526, 105 S. Ct. 1482, 1484, 84 L. Ed.
2d 486, 490 (1985), and Article I, Paragraph
10 of the New Jersey Constitution, State v.
A.R., 213 N.J. 542, 557 (2013). As the
guardian of that guarantee, the trial judge
is entrusted with the responsibility of
controlling courtroom proceedings and is
bounded by the law and the rules of the
court. State v. Tedesco, 214 N.J. 177, 188-
89 (2013).
A jury verdict must be guided by
correct legal instructions from the trial
judge and unaffected by matters extraneous
to the evidence presented at trial. Thus,
"[e]rroneous instructions on matters
material to the juror's deliberations are
presumed to be reversible error." State v.
Allen, 308 N.J. Super. 421, 431 (App. Div.
1998) (quoting State v. Grunow, 102 N.J.
133, 148 (1986)). Although granting a
mistrial in a criminal case "is an
extraordinary remedy[,]" the trial judge is
bound to grant this relief when it is
necessary "'to prevent an obvious failure of
justice.'" State v. Yough, 208 N.J. 385, 397
(2011) (quoting State v. Harvey, 151 N.J.
117, 205 (1997)).
The role of the jury as the judges of
facts is predicated on the integrity of the
deliberative process. State v. Corsaro, 107
N.J. 339, 346 (1987). In those cases where
the jury announces an inability to reach a
unanimous verdict, the decision whether to
grant a mistrial turns on whether the
duration of the deliberations balanced
against the length of the trial and the
complexity of the proofs shows the jury has
made a good-faith effort to reach a
sustainable verdict. See State v. Ramseur,
106 N.J. 123, 300-05 (1987), cert. denied,
508 U.S. 947, 113 S. Ct. 2433, 124 L. Ed. 2d
653 (1993). Beyond this, any further
direction from the judge to continue
deliberations, especially in the absence of
55 A-3458-13T1
a reminder of the right to return a non-
unanimous verdict, could be viewed as
coercive. Figueroa, supra, 190 N.J. at
(citing State v. Hunt, 115 N.J. 330, 382-85
(1989)).
In determining the propriety of a trial
court's response to a jury's inability to
reach a unanimous verdict, our Supreme Court
has identified two principal concerns: (1)
whether the supplemental instruction has the
capacity to improperly influence the
dissenting jurors to change their votes; and
(2) whether "the weighty role that the judge
plays in the dynamics of the courtroom"
improperly coerced the jury into returning a
verdict. Id. at 237-38.
[State v. Dorsainvil, 435 N.J. Super. 449,
480-81 (App. Div. 2014).]
Depending on the circumstances, "even a general inquiry by
the judge about deliberations may present the possibility of
coercion." Figueroa, supra, 190 N.J. at 238. Adhering to these
principles, we have also condemned any measures taken by a trial
judge to "'undo a jury deadlock' by 'focus[ing] upon possibly
the weakest links in the chain locking the jury in disagreement,
namely, the minority holdouts on the jury.'" State v. Nelson,
304 N.J. Super. 561, 565-66 (App. Div. 1997) (quoting Czachor,
supra, 82 N.J. at 398). "Thus, when instructing a jury that
reports being deadlocked, a trial judge must be especially
vigilant to avoid communicating a results-oriented message that
could be perceived as intolerant of dissent and antagonistic to
the free expression of strongly held beliefs that may not be
56 A-3458-13T1
shared by a majority of the deliberating jurors." Dorsainvil,
supra, 435 N.J. Super. at 481.
Here, the record is replete with instances showing the
trial judge repeatedly communicated to the jury a clear message
favoring those jurors who were willing to continue deliberating
and characterizing the one juror who expressed a dissenting
point of view as an "obstructionist." This judicial bias in
favor of unanimity ultimately manifested itself in the judge's
taking the extraordinary action of stripping juror number 1 of
her role as foreperson under Rule 1:8-4, and bestowing that
title and commensurate responsibilities to juror number 2.
Although the judge acted to facilitate the jury's deliberations,
his decision was legally flawed in a number of ways.
The judge's first legally misguided step was in the manner
he selected to respond to the note sent by the group of nine
jurors on the second day of deliberations. Rule 1:8-4 does not
define the duties of a jury's foreperson. However, the Model
Charge for Appointing the Foreperson approved by the Supreme
Court on January 14, 2013, provides the definition the trial
judge correctly gave here at the time he selected juror number 1
as the foreperson in accordance with Rule 1:8-4:
Juror # _____ you are the foreperson of
the jury because of your position in the
jury box. You will preside over the
deliberations and tell us the verdict when
57 A-3458-13T1
reached. Your vote carries no greater
weight than that of any other deliberating
juror.
It is your responsibility to lead
deliberations. It is also your
responsibility to tell us what the verdict
is when the jury has reached it. When you
come out with your verdict, please resume
the seats you now have. We will make
certain everyone is here. We will then ask
the foreperson to stand to confirm that you
have arrived at a verdict.
We will read each charge and will ask
the foreperson what the verdict is as to
each. The foreperson will answer with the
verdict on each charge. We then poll each
of the deliberating jurors to confirm his or
her agreement with the verdict announced by
the foreperson.
[Model Jury Charge (Criminal), "Judge's
Instructions for Selecting and Charging
Alternates and Appointing Foreperson"
(2013).]
This charge gives the foreperson and his or her fellow
deliberating jurors a clear definition of the function of the
foreperson and the scope of the administrative functions the
court expects this person to perform. The first thing the
charge mentions is why the court chose this particular
individual to serve in this capacity: (1) you are the foreperson
of the jury because of your position in the jury box: (2) the
charge then makes clear that the foreperson's vote carries no
greater weight than that of any other deliberating juror: (3)
finally, the charge clearly states the foreperson has just two
58 A-3458-13T1
basic responsibilities or duties (a) to lead deliberations; and
(b) to tell the trial court what the verdict is when the jury
has reached it.
The problem here concerned the meaning of "to lead
deliberations." The trial judge properly sought guidance from
Barber v. ShopRite of Englewood & Assocs., Inc., supra, the only
reported decision from this court that addressed this issue
directly. The underlying facts in Barber concerned a civil
action filed by the plaintiff to recover compensatory damages
for injuries she sustained from a fall on the defendant's
premises. Barber, supra, 406 N.J. Super. at 38-39. The case
was tried before a civil jury that found the defendant negligent
and awarded the plaintiff $876,000 in compensatory damages. Id.
at 37.
The defendant Shoprite appealed. While the appeal was
pending, we granted Shoprite's motion to supplement the trial
record to include an article that appeared in the New Jersey Law
Journal eight months after the jury had returned its verdict in
favor of the plaintiff. Ibid. The article was written by
"Robert Martin, who served as juror number one and foreperson
during the trial. During voir dire, Martin disclosed that he
was a New Jersey State Senator, a full-time professor of law and
a practicing lawyer." Ibid. We "remanded the matter to the
59 A-3458-13T1
trial court to conduct a hearing and take testimony from Martin
and the other jurors with respect to Martin's article." Ibid.
In this article, Martin described his impressions of the
jury selection process, he bemoaned the inherent inconveniences
imposed on those who are compelled to serve; and chastised the
insensitivity and incompetence of those entrusted to care for
the jurors. Id. at 46. With respect to the deliberations,
Martin wrote that despite his best efforts to conceal or
underplay his status as a member of the State Legislature, legal
professor, and practicing lawyer, the other jurors looked to him
for legal guidance.
Over the course of our deliberation I became
increasingly aware that other jurors were
relying on me for assistance, especially in
dealing with abstract legal concepts and
procedural issues. For example, I was asked
to clarify what the judge meant by
"proximate cause" and its significance in
proving a negligence claim. I do think my
familiarity with the law proved helpful to
fellow jurors; but I remain undecided as to
whether it's advisable to have a lawyer
serve on a jury--especially as its foreman.
I am convinced that in our case my opinions
swayed other jurors and were extremely
influential in the final outcome.
[Ibid.]
On remand, the trial court followed our directions and
conducted an evidentiary hearing in which Martin and other
members of the jury testified and confirmed the undue influence
60 A-3458-13T1
Martin had on the deliberative process. In addressing this
outcome, we made the following comments with respect to the role
of the foreperson in a jury:
Martin was designated foreperson of the jury
by virtue of being juror number one--not by
his positions as state senator, law
professor or lawyer. As foreperson, his
role was to maintain order in the
deliberations, marshal the jurors' votes on
the issues presented on the verdict sheet
and to render the verdict on behalf of the
jurors. Otherwise, the jury foreperson is
only one vote of six and his opinions have
no greater weight than those of the other
jurors. It is not the role of the foreperson
to explain legal concepts to the other
jurors.
In short, our review of the entire record in
this case convinces us that Martin's
explanations to the jury had a "tendency" to
influence the verdict. That "tendency,"
coupled with the cumulative trial errors,
deprived defendant of a fair trial.
Accordingly, we are constrained to reverse
. . . .
[Id. at 56 (first emphasis added) (citations
omitted).]
Thus, the role of the foreperson we described in Barber was
reaffirmed by the description approved by the Supreme Court in
the Model Charge. In the course of deliberations, the
foreperson should be permitted to carry out these
responsibilities while at the same time holding and expressing a
point of view that is entirely at odds with those held by the
remaining members of the jury. A juror has the right to stand
61 A-3458-13T1
firm on his or her convictions and decline to deliberate any
further.
We do not fault the trial court's decision to accept the
initial note from the group of nine jurors with the cryptic
message "re deliberations." It is the trial judge's duty to
investigate any claims that may affect the integrity of the
jury's deliberations. See Dorsainvil, supra, 435 N.J. Super. at
487. However, we hold the trial judge erred in deciding to rely
on a "spokesperson" to represent the views of the group. Under
these circumstances, the judge should have interviewed each
juror individually. See State v. Brown, 442 N.J. Super. 154,
183-84 (App. Div. 2015). This approach would have permitted the
judge to gauge the extent of the problem in a private setting
conducive to promote candor and honesty and less vulnerable to
any intimidation or unintended pressures associated with group-
thinking.
By relying only on juror number 10's description of juror
number 1's alleged improprieties, the trial judge ran the risk
of receiving a skewed account of the events that led to the
conflict. By engaging in a lengthy sidebar discussion with
juror number 10, the judge and counsel excluded the jurors he
was appointed to represent and unintentionally vested this juror
with the court's imprimatur, elevating his status within the
62 A-3458-13T1
jury. The prejudice caused by this approach to defendant's
right to a fair trial was revealed when the trial judge accepted
at face value juror number 10's description of juror number 1's
conduct as "obstructionist" and stripped her of her role as
foreperson of the jury.
Under these circumstances, the trial judge's reliance on
our decision in Rodriguez to strip juror number 1 of her title
as foreperson was misplaced. The defendant in Rodriguez was
tried before a jury and convicted of "fourth degree aggravated
assault (N.J.S.A. 2C:12-1b(4)); third degree terroristic threats
N.J.S.A. 2C:12-3); second degree possession of a handgun for an
unlawful purpose (N.J.S.A. 2C:39-4a); and fourth degree
possession of a weapon (Molotov cocktail) for unlawful purposes
N.J.S.A. 2C:39-4(d))." Rodriguez, supra, 254 N.J. Super. at
341. After deliberations, the jury reported it had reached a
unanimous verdict on all eleven counts in the indictment. Id.
at 347.
The foreperson initially read the verdict sheet in
Rodriguez without incident. "After the not guilty response to
count nine (possession of a handgun), the prosecutor brought a
disruption in the jury box to the attention of the judge."
Ibid. Although the trial judge acknowledged the disruption, he
63 A-3458-13T1
allowed the foreperson to continue to read the verdict until the
end. Ibid. The judge then made the following statement:
I have to make an observation, we heard what
we heard and we put on the record, but I
seem, [sic] unless I'm wrong, some shaking
their heads, I would suggest and I think I
take it upon myself as a Judge and I think I
have the authority to do that, that you go
back and that you look at it, not that you
look at your verdict because obviously if
that's your verdict, that's up to you, I'm
not interfering with that, I want you to
know that, but apparently there has been
shaking of heads. I would like you to go
back and resolve whatever you have to
resolve concerning that and then come back
out again and I would ask you to do that,
please.
[Ibid. (second and third emphasis added).]
The jury returned to the jury room as directed. When they
returned to the courtroom after a brief recess, the judge
emphasized he "did not mean to intimidate anyone by sending them
back, but that the shaking of some of the jurors' heads
indicated a lack of unanimity." Ibid. The foreperson again
began to read the verdict, presumably as reflected in the
verdict sheet. After the foreperson finished, counsel requested
the jurors be polled. This immediately revealed that juror
number 8 did not agree with the verdict as reported by the
foreperson. The trial judge again sent the jury back to the
jury room to confer. Ibid.
64 A-3458-13T1
"Shortly thereafter, the judge received a note from the
jury asking whether the [foreperson] could be changed." Ibid.
Overruling defense counsel's objection, the trial judge allowed
the jury to elect a new foreperson. Ibid. The judge then made
the following statement to the jury: "I feel that in spite of
what the rule says, that there are always exceptions, so long as
they're done for the good, and as long as they're done for truth
and justice . . ." Id. at 347-48. The jury retired to the jury
room one more time to continue deliberations. Id. at 348.
After returning from a brief deliberation, the new foreperson
read the new verdict finding the defendant guilty "on counts
three, four, nine and ten. The final verdict on count eight was
changed from guilty to not guilty. The jury was polled and the
verdict was unanimous." Ibid. (emphasis added).
Based on these unusual facts, we affirmed the trial judge's
decision to allow the jury to elect a new foreperson. We
rejected the defendant's argument "that the trial judge's ruling
that the jury could elect a new foreperson violated [Rule] 1:8-4
and may have served to coerce the original foreperson into
guilty verdicts in violation of his constitutional right to a
unanimous verdict by an impartial jury." Id. at 349-50.
Although we acknowledged that the plain language in Rule 1:8-4
"does not contemplate the replacement of a juror, it was
65 A-3458-13T1
certainly within the ambit of the judge's discretion," to take
this action. We noted that Rule 1:1-2 "authorizes relaxation of
the rules, to appoint a new foreperson where there were obvious
difficulties with the member of the jury originally designated."
Id. at 350 (emphasis added). We also emphasized that by
correcting the obvious mistake in the original two misread
verdicts the defendant actually benefited from one less
conviction. Ibid. "Hence, we perceive[d] no coercive influence
on the original foreperson or on any juror by either the
designation of a new foreperson or the additional
deliberations." Ibid. (emphasis added).
The circumstances the trial judge faced in Rodriguez stand
in sharp contrast to what occurred in this case. Here, on the
second day of deliberations, the jury reported it had reached
"an impasse" based on eleven jurors wanting to continue
deliberating and one juror that did not. The trial judge's
decision to remove juror number 1 from the position of
foreperson was a direct response to his assumption that she was
the juror who was unwilling to continue deliberating. The
record reflects the judge characterized juror number 1 as an
"obstructionist" based only on juror number 10's revelations.
The decision to remove juror number 1 of her role as foreperson
was thus capable of being perceived as retaliatory and intended
66 A-3458-13T1
to coerce her into changing her stance against reaching a
unanimous verdict. This is precisely the type of coercive
action the Supreme Court declared unacceptable in Figueroa.
In State v. Musa, 222 N.J. 554, 566 (2015), our Supreme
Court declared that "the removal of a juror because he is
disputatious and does not share the views of other jurors would
undermine the very essence of the free and open debate that is
expected of jury deliberations." Here, the judge's decision to
strip juror number 1 of her role as foreperson merely because of
her perceived stance on deliberations, had the same potential
chilling effect on her right to disagree with the views espoused
by the other eleven jurors.
Under Rule 1:8-2(a), "a deliberating jury in a criminal
action shall consist of 12 persons," unless otherwise stipulated
by the parties at any time before the jury returned the verdict.
Pursuant to Rule 1:8-9, "In every trial by jury the verdict
shall be returned by the jury to the judge in open court. The
verdict shall be unanimous in all criminal actions [.]" Thirty-
six years ago, our Supreme Court decided in Czachor to abandon
the then prevailing Allen10 charge in favor of the model charge
suggested by the American Bar Association. The principal
10
Allen v. United States, 164 U.S. 492, 17 S. Ct. 154, 41 L. Ed.
528 (1896).
67 A-3458-13T1
concern that drove the Court's decision in Czachor was the
intolerance of dissent expressed in the Allen charge.
It is fair to say that the typical Allen
charge does not simply remind jurors of
their duty to cooperate in collective
deliberations. It has a rather different
thrust. The charge is intended to undo a
jury deadlock. It tends therefore to focus
upon possibly the weakest links in the chain
locking the jury in disagreement, namely,
the minority holdouts on the jury. Hence,
the charge usually admonishes specifically
and pointedly only those in the minority to
reconsider their beliefs in light of the
adverse position held by the majority.
. . . .
An instruction that explicitly directs only
the dissenters to doubt the reasonableness
of their convictions is inherently one-
sided.
[Czachor, supra, 82 N.J. at 398-99 (emphasis
added).]
Dissent against unanimity, with all its commensurate
inconvenience, is a constitutionally protected position for a
juror to take in the course of deliberations. It is a position
a defendant is entitled to rely on and one the court is
obligated to protect as ancillary to the State's obligation to
prove defendant's guilt beyond a reasonable doubt to a unanimous
jury. As noted by Justice Albin in Musa: "Although jurors are
urged to attempt to reach consensus, discord, not just assent,
is a natural part of the deliberative process. A court may not
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play any role in jiggering a jury panel's composition for the
purpose of imposing conformity." Musa, supra, 222 N.J. at 566.
Here, the trial judge's well-intended preoccupation with
promoting unanimity undermined defendant's right to a fair trial
and overwhelmed the jury's autonomous role as the judges of the
facts.
Finally, we are compelled to comment on the judge's
decision to agree to meet with the group of nine jurors.
Confronted with allegations of impropriety in the deliberative
process, the judge should have interviewed each juror separately
and
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.
[State v. R.D., 169 N.J. 551, 558 (2001)
(citations omitted).]
Here, the judge's undue reliance on juror number 10's version of
events left a number of important issues unaddressed. Key among
them is the judge's failure to interview the two jurors who
chose not to join the group of nine's criticism of the way juror
number 1 was discharging her responsibilities as foreperson.
Interviewing these two jurors separately could have given the
69 A-3458-13T1
judge a valuable insight independent of the views heard from
juror number 10.
It is well known that jury deliberations can be boisterous
and contentious. However, as the Court noted in Figueroa and
recently reaffirmed in Ross, a trial judge's interactions with
the jury must be "guided by a concern for the weighty role that
the judge plays in the dynamics of the courtroom." State v.
Ross, 218 N.J. 130, 145 (2014) (quoting Figueroa, supra, 190
N.J. at 238). Unlike interviewing an individual juror in
response to a personal matter or concern, a judge's decision to
meet with a group of jurors in response to how deliberations are
being conducted may thrust the judge in the midst of an internal
debate over which the judge cannot be viewed as a partisan.
As this case illustrates, any attempt by the judge to
mediate the dispute or ameliorate the hostility only sucks the
court deeper into the vortex. The deliberative process is
designed to be confidential to promote the free exchange of
ideas and points of view. Musa, supra, 222 N.J. at 568. Other
than charging the jury with the supplemental instructions
approved by the Supreme Court in Czachor which, inter alia,
exhorts each juror "not [to] surrender your honest conviction as
to the weight or effect of evidence solely because of the
opinion of your fellow jurors, or for the mere purpose of
70 A-3458-13T1
returning a verdict," a trial judge has no role to play in
facilitating the jury's discussions or promoting unanimity.
Czachor, supra, 82 N.J. at 405 n.4 (quoting ABA Project on
Minimum Standards for Criminal Justice, Standards Relating to
Trial by Jury, § 5.4 cmt., at 146-47 (Approved Draft 1968)).
Unfortunately, the record we have taken the time to recite at
length shows the trial judge asking jurors on more than one
occasion to "tell me what you think I should need to know to try
to move this towards a verdict."
The decision to grant a mistrial rests within the sound
discretion of the trial judge. R.D., supra, 169 N.J. at 558.
We are satisfied the record here shows the trial judge erred in
the exercise of this discretion when he denied defendant's
applications for a mistrial. Because this issue is sufficient
to warrant the reversal of defendant's conviction, we do not
reach the remaining arguments raised by defendant in this
appeal.
Reversed and remanded for a new trial. We do not retain
jurisdiction.
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