STATE OF NEW JERSEY VS. SIWAN R. BROWN (15-09-1253, HUDSON COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2838-16T1

STATE OF NEW JERSEY,

APPROVED FOR PUBLICATION

AS REDACTED

Plaintiff-Respondent, December 27, 2018

v. APPELLATE DIVISION

SIWAN R. BROWN, a/k/a

SHAWN BROWN,

Defendant-Appellant.

____________________________

Argued November 26, 2018 – Decided December 27, 2018

Before Judges Sabatino, Sumners and Mitterhoff.

On appeal from Superior Court of New Jersey, Law

Division, Hudson County, Indictment No. 15-09-1253.

Daniel S. Rockoff, Assistant Deputy Public Defender,

argued the cause for appellant (Joseph E. Krakora,

Public Defender, attorney; Daniel S. Rockoff, of

counsel and on the brief).

Lila B. Leonard, Deputy Attorney General, argued the

cause for respondent (Gurbir S. Grewal, Attorney

General, attorney; Lila B. Leonard, of counsel and on

the briefs).

The opinion of the court was delivered by

SABATINO, P.J.A.D.

Tried by a jury, defendant Siwan R. Brown was found guilty of various

drug offenses. The State's case was largely based on the seizure of over one

thousand bags of heroin and other drug paraphernalia from a residence that

defendant shared with other relatives.

Among other things, defendant argues on appeal the trial court erred in

declining the jury's request during their deliberations to have the court play

back defense counsel's closing argument for them. The court denied that

request on the basis that, as the Model Criminal Jury Charges state, the

summations of counsel do not comprise evidence. The propriety of granting

such a playback request from jurors has not been addressed before in any

published New Jersey opinion, although the issue has arisen in case law from a

few other jurisdictions.

For the reasons that follow, we hold that trial courts in our State have the

discretion in appropriate circumstances to grant jury requests to have the

closing arguments of all counsel played back or read back to them, in full or in

part. In recognizing that discretionary authority, we follow other jurisdictions

that have acknowledged the discretion of judges to allow such playbacks or

readbacks. We reject, however, defendant's contention that the denial of the

jury's playback request in his own case was unduly prejudicial and requires a

new trial.

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In the unpublished portion of this opinion, we affirm the trial court's

pretrial ruling to admit incriminating statements that defendant made to police

officers after they stopped his car for a traffic violation and smelled marijuana.

However, with the State's acquiescence, we remand this case to the trial court

to reevaluate, under the multi-factor voluntariness test of State v. King, 44 N.J.

346 (1965), whether the police obtained defendant's valid consent to search his

residence after the motor vehicle stop. We also remand this matter for the trial

court to reevaluate whether the police had a sufficient lawful basis at the time

of the motor vehicle stop to request defendant's consent to search his

residence.

I.

[At this court's direction Parts I(A), (C), (D), (E),

II, III, and V of this opinion, which concern

matters not pertinent to the playback issue in Part

IV, have been omitted from the published version

of this opinion. R. 1:36-3.]

B.

The Indictment

Based on this evidence, a Hudson County grand jury charged defendant

with multiple crimes. The charges included first-degree operation of a facility

for manufacturing heroin, N.J.S.A. 2C:35-4 (count one); second-degree

possession of heroin with intent to distribute, N.J.S.A. 2C:35-5(a)(l) and

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N.J.S.A. 2C:35-5(b)(2) (count two); third-degree possession of heroin with

intent to distribute while within 1,000 feet of school property, N.J.S.A. 2C:35 -

7 (count three); second-degree possession of heroin with intent to distribute

while within 500 feet of a public park, N.J.S.A. 2C:35-7.l (count four); third-

degree possession of heroin, N.J.S.A. 2C:35-10(a)(l) (counts five and six); and

fourth-degree possession of drug paraphernalia with intent to distribute,

N.J.S.A. 2C:36-3 (count seven).

IV.

We turn to the novel legal issue of whether the trial judge had the

authority to grant the deliberating jurors' request to have defense counsel's

closing argument played back or read back to them. This issue has not yet

been the subject of any reported opinions in our State.

A.

The chronology pertinent to this playback issue is as follows. The jurors

were read the court's charge on Friday, September 16, 2018. After some

deliberations, the jurors submitted a question to the court that day that read:

"The jury wants to confirm if [defendant] admitted and officially [sic] that he

had two bundles in his pocket. Who alleges that [defendant] said this?" The

trial judge informed the jurors that he could not answer this question, and

instead they had to rely on their own recollection of the evidence presented.

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Later that day, the jurors sent another note to the court that read: "We

don't have unanimous votes. Are we going to wait for your advice?" The

judge summoned the jurors back into the courtroom and told them that,

because it was nearly 5:00 p.m. on a Friday, he was going to discharge them

for the weekend. The judge instructed the jurors to return to court Monday

morning to continue deliberations.

On Monday, September 19, the court started the day by replacing a juror,

with no objection from counsel, with an alternate juror. The reconstituted jury

then resumed its deliberations.

After a lunch order was arranged, the deliberating jurors sent a note to

the court that read: "We would like to hear the defense summation again."

Before calling the jurors back into the courtroom, the trial judge advised the

prosecutor and defense counsel that he intended to respond to this request by

telling the jurors that "openings and summations are not evidence [and] . . .

they're going to have to rely upon their recollections."

Defense counsel urged the court to reconsider playing back the

summations, even though they are not evidence. Counsel advised that a judge

in the same vicinage had recently granted such a request, although that case

was not precedential. The State objected, arguing that summations are not

considered evidence and therefore should not be replayed.

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The judge agreed with the State's position. The jurors were brought

back into the courtroom. The judge explained to them that he would not replay

summations because they are not considered evidence. He instructed them to

rely on their recollections of the evidence to guide their decision.

The jurors also asked the court to replay the trial testimony of Officer

DeJesus. The judge agreed to do so. He informed the jury the playback of the

officer's direct and cross-examination would take about seventy minutes. The

court took a short recess to arrange the playback. Before the playback

occurred, the jurors sent back another note that said, "The jury is already

satisfied with the answer given. We decided to withdraw the other request.

The jury has reached a unanimous decision."

The jurors returned to the courtroom and issued their verdict, finding

defendant not guilty on the manufacturing charge in count one, but guilty of

the remaining charges. The judge polled the jurors individually and confirmed

their verdict was unanimous.

B.

The core issue posed to us is whether a trial judge may – as at least one

judge in the vicinage had apparently done – grant a jury's request to have all or

parts of counsel's closing arguments played or read back to the jury a second

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time. To resolve this question, we consider the important functional role that

closing arguments can have in trial practice, particularly in a jury trial.

Unlike an opening statement from trial counsel, which can only preview

what evidence is anticipated, a closing argument provides an important chance

for all counsel to highlight and analyze the proofs that were actually presented

at the trial. An effective summation can helpfully tie together for the trier of

fact the various pieces of evidence, and explain how those pieces do or do not

fit into the advocate's theory of the case.

In a criminal case such as this one, summations can supply an organized

and focused explanation of how the evidence does or does not satisfy the

elements of an offense, and how those proofs do or do not establish a

defendant's guilt beyond a reasonable doubt. Closing arguments can also

spotlight the testimony of certain witnesses, and address how cross-

examination or other evidence either impeached (or, conversely, bolstered) the

credibility of those witnesses. In essence, the summation has an important

function of providing a coherent analysis of the evidence for the jury, or for

the judge in a non-jury case.

The United States Supreme Court expounded upon these important

principles in Herring v. New York, 422 U.S. 853 (1975). In that case, the

Court struck down as unconstitutional under the Sixth Amendment a New

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York statute that gave trial judges the discretion to disallow closing arguments

of counsel in non-jury criminal cases. The Court reasoned in Herring that such

closing arguments are a vital part of trial counsel's advocacy role. We repeat

here portions of the Court's insights concerning that role:

The widespread recognition of the right of the

defense to make a closing summary of the evidence to

the trier of the facts, whether judge or jury, finds solid

support in history. In the 16th and 17th centuries,

when notions of compulsory process, confrontation,

and counsel were in their infancy, the essence of the

English criminal trial was argument between the

defendant and counsel for the Crown. Whatever other

procedural protections may have been lacking, there

was no absence of debate on the factual and legal

issues raised in a criminal case. As the rights to

compulsory process, to confrontation, and to counsel

developed, the adversary system's commitment to

argument was neither discarded nor diluted. Rather

the reform in procedure had the effect of shifting the

primary function of argument to summation of the

evidence at the close of trial, in contrast to the

"fragmented" factual argument that had been typical

of the earlier common law.

[Id. at 860-61 (emphasis added).]

As the Court further elaborated:

It can hardly be questioned that closing

argument serves to sharpen and clarify the issues for

resolution by the trier of fact in a criminal case. For it

is only after all the evidence is in that counsel for the

parties are in a position to present their respective

versions of the case as a whole. Only then can they

argue the inferences to be drawn from all the

testimony, and point out the weaknesses of their

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adversaries' positions. And for the defense, closing

argument is the last clear chance to persuade the trier

of fact that there may be reasonable doubt of the

defendant's guilt.

The very premise of our adversary system of

criminal justice is that partisan advocacy on both sides

of a case will best promote the ultimate objective that

the guilty be convicted and the innocent go free. In a

criminal trial, which is in the end basically a fact

finding process, no aspect of such advocacy could be

more important than the opportunity finally to marshal

the evidence for each side before submission of the

case to judgment.

[Id. at 862 (emphasis added) (citation omitted).]

Having emphasized these fundamental principles, the Court in Herring

acknowledged that an attorney's right to present a closing argument is not

unbounded:

This is not to say that closing arguments in a

criminal case must be uncontrolled or even

unrestrained. The presiding judge must be and is

given great latitude in controlling the duration and

limiting the scope of closing summations. He may

limit counsel to a reasonable time and may terminate

argument when continuation would be repetitive or

redundant. He may ensure that argument does not

stray unduly from the mark, or otherwise impede the

fair and orderly conduct of the trial. In all these

respects he must have broad discretion.

....

Some cases may appear to the trial judge to be

simple – open and shut – at the close of the evidence.

And surely in many such cases a closing argument

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will, in the words of Mr. Justice Jackson, be "likely to

leave [a] judge just where it found him." But just as

surely, there will be cases where closing argument

may correct a premature misjudgment and avoid an

otherwise erroneous verdict. And there is no certain

way for a trial judge to identify accurately which cases

these will be, until the judge has heard the closing

summation of counsel.

[Id. at 863 (emphasis added) (citations omitted).]

See also Thomas A. Mauet, Trial Techniques 387 (8th ed. 2010) ("Closing

arguments are the chronological and psychological culminations of a jury trial.

They are the last opportunity to communicate directly with the jury.").

New Jersey case law has recognized these general principles. See R.

1:7-1(b) (granting counsel a right to present closing statements at the end of a

case "except as may be otherwise ordered by the court"); see also State v.

Briggs, 349 N.J. Super. 496, 500-01 (App. Div. 2002) (citing Herring by

analogy in upholding defense counsel's right to present "meaningful argument"

at sentencing).

In keeping with these concepts, our trial courts have been granted the

discretion to allow counsel to present supplemental closing arguments in

appropriate circumstances, particularly where there has been a significant gap

in time between deliberations stopping and resuming, or where a legal issue

has arisen that might warrant further advocacy. See, e.g., State v. Rovito, 99

N.J. 581, 588 (1985) (finding no error when a trial court granted an additional

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ten minutes to both parties to present supplementary summations after the

court decided to charge the jury on an additional provision after the completion

of summations); see also State v. Speth, 324 N.J. Super. 471 (Law Div. 1997),

aff'd, 323 N.J. Super. 67 (App. Div. 1999) (in which the trial court permitted

both sides to supplement any summations after deliberations were underway,

in a complex case where lengthy deliberations over several weeks had been

interrupted by religious holidays and a weekend).

C.

Mindful of the well-established important function of summations, we

now turn to the principles that pertain to the process of playing back or reading

back portions of a trial, when requested by a jury.

Our courts have long recognized that juries sometimes will ask to review

testimony when they are in the midst of deliberations. The Supreme Court has

held that "[a]bsent 'some unusual circumstance,' those requests should be

granted." State v. Miller, 205 N.J. 109, 119-20 (2011) (quoting State v.

Wolf, 44 N.J. 176, 185 (1965)). The Court reasoned in Miller that "[t]he

requests are a clear sign that the evidence sought is important to the

deliberative process" and therefore, "the 'true administration of justice'

requires that judges typically accede to jury requests to review testimony."

Miller, 205 N.J. at 120.

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Comparably, judges who have reserved decision in a case sometimes

play back the recorded arguments of counsel. They do so in order to refresh or

clarify their recollections before issuing a ruling. Jurors understandably may

want a similar opportunity before rendering a verdict.

Trial courts have "broad discretion as to whether and how to conduct

read-backs and playbacks." Id. at 122; see also State v. Wilson, 165 N.J. 657,

660 (2000) ("It is well-established that 'the reading of all or part of the

testimony of one or more of the witnesses at a trial, criminal or civil, at the

specific request of the jury during their deliberations is discretionary with the

trial court.'") (quoting Wolf, 44 N.J. at 185). A party opposing the playback of

testimony has the burden to object and demonstrate prejudice. Miller, 205 N.J.

at 124; see also State v. Ortiz, 202 N.J. Super. 233, 245 (App. Div. 1985).

The trial judge in the present case rightly noted that, unlike trial

testimony, the arguments of counsel are not evidence, and should not be

treated by a jury as such. Our Model Jury Charges reinforce that principle.

See, e.g., Model Jury Charges (Criminal), "Criminal Final Charges" (rev. May

12, 2014). This does not mean, however, that jurors categorically are

prohibited from hearing once again the closing arguments of counsel on

appropriate terms and conditions – if, for some reason that arises in their

deliberations, they wish to have those arguments repeated or replayed.

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Jurors may have difficulty remembering exactly what counsel said in

summations about a hotly disputed aspect of the evidence. Jurors also may not

have heard the words of counsel in summation clearly if counsel spoke softly

or mumbled, or they might not have understood them.

In such rare circumstances when they arise, we discern no reason why a

playback or readback of closing arguments should be categorically disallowed,

provided, of course, the summations of both sides are presented. Instead, trial

courts should maintain the discretion to allow or disallow such requests, in the

interests of justice. 1

Other jurisdictions, most notably California, have recognized a trial

court's discretionary authority to allow such readbacks or playbacks. As the

California Supreme Court stated in People v. Gordon, 792 P.2d 251, 274 (Cal.

1990), "We do not doubt that a trial court's inherent authority regarding the

performance of its functions includes the power to order argument by counsel

to be reread to the jury or to be furnished to that body in written form. The

exercise of such power must be entrusted to the court’s sound discretion ."

(Emphasis added). See also People v. Pride, 833 P.2d 643, 680 (Cal. 1992)

1

By analogy, our Rules of Court have been amended to require a written copy

of the court's instructions in criminal cases to be provided to jurors in the jury

room, in recognition that jurors may have trouble remembering the precise

words of those instructions. See R. 1:8-8(b)(2).

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(noting the trial court correctly concluded that it had discretion to deny the

jury's request to playback summation and "expressed appropriate concern over

diverting the jury's attention from proper consideration of the evidence and

instructions"); People v. Sims, 853 P.2d 992, 1021 (Cal. 1993) (noting the

"trial court erred in suggesting that it lacked authority to order the reading

back of defense counsel's closing summation," but concluding the error was

not prejudicial); People v. Gurule, 51 P.3d 224, 286 (Cal. 2002) (finding no

abuse of discretion where a trial court declined a request for readback of

closing argument, particularly when defense counsel's closing arguably had

misstated the law).

New York courts likewise have recognized this principle. See, e.g.,

People v. Jones, 483 N.Y.S.2d 89, 89 (App. Div. 1984) (noting the trial court's

discretion to grant such a jury request, but finding no "improvident" exercise

of that discretion in denying the request in that case); People v. Foster, 499

N.Y.S.2d 808, 808 (App. Div. 1986) (finding no error in the court's denial of a

similar jury request).

The only jurisdiction we know of that disallows the playback or

readback of counsel's summations is Vermont, which perceived a risk of

prejudice in engaging in such a procedure where only the State's summation

was read back. State v. Fitzgerald, 449 A.2d 930, 932 (Vt. 1982) (criticizing a

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trial court for allowing a rereading of only a prosecutor's summation without

the defense summation, but finding no "clear error" requiring the jury's verdict

to be overturned).

Consistent with the practice in California and New York, we hold that

trial courts in New Jersey have the discretion to grant requests from juries to

play back or read back closing arguments. In exercising that discretion, courts

may consider such factors as: (1) whether counsel made improper or

inflammatory remarks in summation; (2) whether counsel materially misstated

the evidence; (3) whether multiple objections to the closing arguments had

been interjected, and whether they were sustained or overruled; (4) the length

and complexity of the trial; (5) whether deliberations had been lengthy or

significantly interrupted; and (6) other practical and equitable considerations.

Applying these precepts of discretion to the present case, we find no

reason to grant defendant a new trial on this basis. The trial was not

particularly lengthy. The issues were not especially complex. The jurors'

deliberations only covered portions of two days. The weekend gap between

those two days was not protracted. Although defense counsel was interrupted

in summation a few times by the prosecutor with objections, none of those

interruptions was exceptional.

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While it may have been helpful, in retrospect, for the trial court to have

accommodated the jurors' request to hear the closing arguments again, the

denial of their request was not an abuse of discretion, nor a reversible error

mandating a new trial. Notably, the jurors decided to forego a playback of

Officer DeJesus's testimony, after being told that his playback would consume

about seventy minutes. A playback of both counsel's summations presumably

would have taken considerable time, and it is possible the jurors would have

eschewed that playback as well. We will not speculate that the denial of the

playback request was prejudicial to either party.

In sum, although we agree with defendant that the trial court did possess

the inherent authority to grant the jurors' playback request, the court did not

misapply its discretion in denying it. Moreover, the denial did not manifestly

prejudice defendant, certainly not to a degree warranting a new trial. R. 2:10-

2.

Affirmed in part, and remanded in part. We do not retain jurisdiction.

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