State of New Jersey v. William J. Silvers, III

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2353-21

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

WILLIAM J. SILVERS, III,

a/k/a WILLIAM J. SILVERS,

111, WILLIAM J. SILVER, III,

and WILLIAM SILVER,

Defendant-Appellant.

____________________________

Argued September 26, 2023 – Decided November 16, 2023

Before Judges Sabatino, Mawla and Chase.

On appeal from the Superior Court of New Jersey, Law

Division, Hudson County, Indictment No. 19-07-0813.

Margaret Ruth McLane, Assistant Deputy Public

Defender, argued the cause for appellant (Joseph E.

Krakora, Public Defender, attorney; Margaret Ruth

McLane, of counsel and on the briefs).

Leslie-Ann Marshall Justus, Deputy Attorney General,

argued the cause for respondent (Matthew J. Platkin,

Attorney General, attorney; Leslie-Ann Marshall

Justus, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

The opinion of the court was delivered by

SABATINO, P.J.A.D.

The main issue in this criminal appeal is whether the trial court erred

during jury selection in denying defense counsel's requests to remove for cause

two potential jurors who are police officers. The officers are employed by police

departments in different municipalities from where the alleged offenses

occurred, investigated, and were prosecuted, but within the same county.

We reject defendant's contention that because interaction with the county

prosecutor's office is inherently a "necessary component of their jobs as police

officers," active-duty police officers who work in the same county where the

criminal charges arose must be stricken for cause from juries upon a defendant's

request.

Instead of applying a categorical bar, we continue the tradition of State v.

Reynolds, 124 N.J. 559, 565 (1991), in which the Supreme Court recognized the

concerns about the potential bias of police-officer-jurors, but which also

declined to endorse a strict policy to remove them for cause. The Court in

Reynolds instructed judges "should be inclined to excuse a member of the law

enforcement community" from the jury upon a defendant's request, leaving it to

the trial courts to perform an individualized assessment of each juror's ability to

be fair and impartial. Ibid.

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Extending the nuanced approach of Reynolds, we hold that a per se finding

of cause to strike a criminal juror in law enforcement should only apply to

employees of the same police department or prosecutor's office that investigated

or prosecuted the charged offense. To aid trial judges and counsel, we present

non-exhaustive factors that should be considered in evaluating, on a juror -by-

juror and case-by-case basis, whether there is cause to remove a juror employed

in law enforcement. If, on the whole, those factors establish cause, the trial

court "shall" remove the juror, as is required under the recently reinforced

language of Rule 1:8-3(b).

Applying these principles, we affirm the trial court's decision to deny

defendant's request to strike for cause one of the two police officers, as his voir

dire elicited insufficient grounds to do so. We do find error with respect to the

other officer, based on the responses from that officer during his own voir dire.

However, because the latter officer was never summoned to the jury box, the

court's error in failing to remove the juror for cause was harmless.

In the unpublished portion of this opinion, we address unrelated

arguments raised by defendant on appeal alleging evidentiary and sentencing

errors. Having found those arguments lack merit, we consequently affirm

defendant's convictions and sentence.

I.

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This prosecution of defendant William J. Silvers, III stems from an

altercation in which he punched and allegedly tried to choke his then-girlfriend,

R.S.1, on a boat docked on a pier by the Hudson River, and then allegedly threw

her off the boat into the river.

At the time of the incident, R.S. and defendant had been in a relationship

for about six weeks. According to her account, R.S. left work at around 11:30

p.m. on October 1, 2018. She went to meet defendant, who had brought vodka

for each of them. They walked together for about thirty minutes to defendant's

boat, where he was living at the time, which was docked on a pier in Hoboken.

During the walk, the two of them talked and drank the vodka. According to

R.S., she consumed about a half a pint of vodka during the walk but did not feel

intoxicated.

R.S. and defendant went to the boat's cabin to sleep. While in bed

together, they were conversing. R.S. requested that defendant give her the

money from her paycheck that she said he owed her. According to R.S.'s

testimony, she had arranged for defendant to deposit her paychecks into his bank

account because she had lost her identification, and that he had agreed he would

pay her the money afterwards. However, defendant began to argue with and yell

at R.S. in response to her request in the boat cabin that he pay her the money.

1

We use initials to protect the victim's privacy. R. 1:38-3(c)(12).

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R.S. ended the conversation, rolling over onto her side to go to sleep.

Defendant continued to yell at R.S. When she turned towards him, he allegedly

grabbed her by the throat with both hands, choking her. R.S. could not breathe

and struggled to choke him back or pull his hands off her. Defendant removed

his hands but began punching her in the face and back of the head.

As described by R.S., she tried to escape, but defendant kept hitting her,

striking her chest and back, and blocked the exit of the cabin by kicking and

pushing her back into the boat. She eventually made it out of the cabin to the

side of the boat. Realizing she could not safely get off the boat, R.S. shouted

for help.

According to R.S.'s trial testimony 2, defendant then picked her up by her

shorts and the back of her neck and threw her into the Hudson River. R.S. swam

to shore, but defendant was waiting for her. Defendant left R.S. to get a rescue

tube, giving her an opportunity to climb a fence and escape. R.S. made her way

to a nearby apartment building, where the concierge called 9-1-1.

A patrolman from the Hoboken Police Department responded to the call

at around 2:30 a.m. Observing that R.S. was wet and visibly injured, he called

for an ambulance. EMTs arrived and attended to R.S. After receiving medical

2

By contrast, the defense presented trial testimony from an EMT who stated

that R.S. told her "she fell from a boat," rather than being thrown.

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treatment briefly at a local hospital, R.S. filed a criminal complaint against

defendant.

The Hudson County Prosecutor's Office procured an indictment against

defendant, charging him with second-degree aggravated assault by purposely

attempting to cause serious bodily injury, N.J.S.A. 2C:12-1(b)(1); third-degree

aggravated assault by obstructing the victim's breathing, N.J.S.A. 2C:12-

1(b)(13); and third-degree criminal restraint, N.J.S.A. 2C:13-2(a).

The case was tried before a Hudson County jury over four days in August

2021. The State presented four witnesses: R.S., the concierge, the Hobo ken

police officer who had responded to the 9-1-1 call, and a detective from the

Hoboken Police Department who investigated the case. Defendant did not

testify on his own behalf. He called two EMTs and a physician's assistant who

had attended to R.S., the custodian of records from the local hospital, and the

Hoboken police detective who was the lead investigator on the case.

Defense counsel argued in summation that R.S.'s account of the incident

was implausible. Counsel asserted it was unlikely that defendant, who is short

in stature, could have hoisted R.S. and thrown her into the river in the manner

R.S. described. Counsel also noted that R.S. admitted that defendant had offered

to bring her a rescue tube when she was in the water. The defense submitt ed

that the couple merely had an argument, and that R.S. was biased and angry at

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defendant because she thought he owed her money. The defense argued that

R.S. was intoxicated after drinking about five shots of vodka, and that her

recollection of the events was untrustworthy. Through the medical witnesses

and records, the defense further asserted R.S. was not seriously injured in the

incident, and she had sustained only minor bruises, a contusion on her nose, and

a loose tooth.

In addition, defense counsel argued the police had conducted a shoddy

investigation. Among other things, counsel noted the lead detective admitted to

speaking with R.S. before taking her recorded statement and misplacing his

interview notes, which he failed to turn over in alleged violation of Attorney

General Guidelines. The detective did not try to find video surveillance footage

that might have captured the events or bank deposit records that might have

corroborated her narrative.

The jury found defendant guilty of the lesser included offense of third-

degree aggravated assault (which requires proving only a risk of significant

bodily injury, not serious bodily injury), and criminal restraint. The jury

acquitted defendant of the charge of aggravated assault by obstruction of

breathing.

At sentencing in January 2022, the trial court found defendant qualified

as a persistent offender under N.J.S.A. 2C:44-3 because he had been convicted

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of at least two crimes since turning the age of eighteen and had been released

from confinement only seven-and-a-half years before the present offenses. The

court noted defendant had several previous instances of domestic violence, some

of which resulted in final restraining orders.

The court found several pertinent aggravating factors: two, N.J.S.A.

2C:44-1(a)(2) (severity of harm to victim); three, N.J.S.A. 2C:44-1(a)(3) (risk

of recidivism); six, N.J.S.A. 2C:44-1(a)(6) (extent and severity of defendant's

prior criminal history); and nine, N.J.S.A. 2C:44-1(a)(9) (need for deterrence).

The court identified no mitigating factors.

Based on this analysis, the court sentenced defendant to a custodial term

of five years, with two-and-a-half years of parole ineligibility. At the same

hearing, the court sentenced defendant in a separate matter, pursuant to a plea

agreement, to a concurrent four-year custodial term for third-degree aggravated

assault, N.J.S.A. 2C:12-1(b)(12), of a different victim, an offense which had

occurred while he was on pretrial release for the present case.

On appeal, defendant argues the following points in his counseled brief:

POINT I

THE TRIAL COURT ERRED IN FAILING TO

GRANT THE DEFENSE REQUEST TO STRIKE FOR

CAUSE TWO ACTIVE-DUTY HUDSON COUNTY

POLICE OFFICERS.

POINT II

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THE TRIAL COURT ERRED IN FAILING TO

GRANT A MISTRIAL AFTER THE COMPLAINING

WITNESS TESTIFIED THAT DEFENDANT HAD

PREVIOUSLY DONE THE EXACT THING FOR

WHICH HE WAS ON TRIAL.

POINT III

THE FAILURE TO STRIKE ULTIMATE-ISSUE

TESTIMONY THAT THE COMPLAINING

WITNESS WAS ASSAULTED REQUIRES

REVERSAL OF DEFENDANT'S CONVICTIONS.

POINT IV

DEFENDANT MUST BE RESENTENCED

BECAUSE THE COURT IMPROPERLY

CONSIDERED ARRESTS THAT DID NOT LEAD

TO CONVICTIONS IN FINDING AGGRAVATING

FACTORS.3

II.

A.

The especially lengthy jury selection in this case consumed ten days in

late July and early August 2021. The first stage of jury voir dire was conducted

3

Defendant has also submitted a handwritten pro se supplemental brief.

Although it is repetitive and fails to designate which arguments were not raised

below, he essentially argues that: (1) his case should have been prosecuted under

maritime jurisdiction; (2) the case was poorly investigated; (3) the victim's

statement was improperly taken; (4) his arrest was illegal, for unspecified

reasons; (5) the State's evidence was inadequate; and (6) the victim was not

seriously injured and at most he only should have been charged with simple

assault.

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remotely by videoconference before the process continued in the courthouse.

Five times during the selection process, a prospective juror with a law

enforcement occupation was interviewed. The first one, a United States

Customs and Border Patrol agent, was readily excused without a formal

challenge because she stated she "probably" would not have an open mind about

the case. The other four jurors with law enforcement positions were challenged

for cause by defense counsel. Two of those four jurors were excused by the

court.

The first such juror excused by the court was a county correctional officer

who was working at the same Hudson County facility that was holding

defendant. Although the juror attested he could be fair and impartial, the trial

court released him because he might encounter defendant at the correctional

facility.

The other law enforcement officer removed from the jury pool by the court

for cause was a Port Authority police officer. He disclosed that he recognized

the name of the lead detective from a work-related email chain and admitted

that, given the nature of his work and training, he "possibly" could not have an

open mind about this case.

The two prospective jurors employed in law enforcement who are the

subject of this appeal are a Jersey City police officer, R.M., and a Union City

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police officer, A.A. 4 We detail information elicited from them and the efforts

by defense counsel to remove them.

Juror R.M.

During voir dire, Juror R.M. told the court that he was an active-duty

police officer in Jersey City. He had been on the police force for six years. R.M.

stated that he did not know any of the people involved in the case. He

maintained that he would treat police-officer-witnesses just like any other

witness, and that he could remain fair and impartial.

R.M. volunteered that his unit "answer[s] a lot of calls in regards to

domestic violence." He also disclosed that he is "familiar with criminal

restraints and aggravated assault" and had "dealt with them especially through

domestic violence a lot" in the course of his employment.

R.M. asserted that jury charges and the law were "very self-explanatory

and . . . it's not really very hard to follow what is written on both criminal

restraints or aggravated assault," numerically citing to the court both statutory

provisions. R.M. attested that he could set aside his understanding of the law:

"I personally don't believe that this is going to affect my ability in any way, but

4

As is the present custom, we use initials for these prospective jurors.

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I just wanted to make it clear, you know, to [t]he [c]ourt." The court directed

R.M. to return for the in-person jury selection scheduled for the following week.

Defense counsel moved to excuse R.M. for cause because of his police

experience. In particular, defense counsel noted that R.M. (1) cited to the

criminal statutes; (2) has "great experience" responding to the incidents of

domestic violence and abuse; and (3) "likely knows what the penalties are."

Counsel argued "even if [R.M.] says he can set aside his own experience it's

impossible for him not to bring his vast experience with these types of issues

and . . . his independent knowledge of New Jersey [l]aw to his deliberations in

this case." Counsel also cited the Supreme Court's opinion in Reynolds, which

we will discuss more in Part II(B).

The trial court rejected these entreaties, finding that "the fact that [R.M.

is] a police officer . . . shouldn't exclude him, just like it wouldn't exclude a

lawyer just because he might be a criminal defense attorney" and that "nothing

that he stated . . . would suggest that he couldn't be fair and impartial."

On the next court date, defense counsel renewed her motion to strike R.M.

from the jury for cause. Among other things, counsel stressed that Jersey City

police officers such as R.M. are supervised by the Hudson County Prosecutor's

Office that was prosecuting defendant. She argued both law enforcement

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entities work "incredibly closely" with each other and are considered one entity

with respect to discovery obligations.

The prosecutor responded that the chains of command in the Hudson

County Prosecutor's Office and the Jersey City Police Department "would likely

not believe" that prosecutors "supervise" local police officers. The prosecutor

also noted the Jersey City Police Department is one of thirteen different law

enforcement agencies, albeit the largest one, that works with his office.

The trial court again denied defendant's motion to strike R.M. for cause,

finding that the law enforcement entities involved were "separate."

Juror A.A.

Juror A.A.'s voir dire occurred two court days later. His examination was

more abbreviated than that of R.M.

A.A. told the court that he had been working as a patrolman for three years

in the Union City Police Department. A.A. stated he believed that a police

officer is "equally" likely to tell the truth as a witness who is not a police officer.

He also attested that he could remain impartial and believed that he had to

consider the charges and the law with an open mind. He did not mention the

types of cases that he worked on as an officer.

Defense counsel moved to strike A.A. for cause from the jury panel. She

noted that he is on active duty with a police department located in Hudson

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County, which means that he must work with County prosecutors, even if he had

never dealt with the assistant prosecutor assigned to defendant's case.

The trial court rejected defendant's arguments and empaneled A.A. for the

in-person jury selection phase. At that proceeding, defense counsel renewed her

request to strike A.A. for cause when he was called up to the sitting jury.

Counsel cited to Reynolds and reiterated that the Prosecutor's Office works

closely with all police agencies in the county.

The court again denied the request, finding A.A.'s demeanor and

responses to questioning reflected that he would be fair and impartial.

Defense counsel then used her tenth peremptory challenge to remove A.A.

from the jury. A.A. was accordingly excused. R.M. was never placed in the

jury box, so there was no occasion for the defense to use a peremptory strike to

remove him.

Defense counsel exhausted the remainder of her twenty peremptory

challenges on other seated jurors. The court and the prosecutor made defense

counsel aware of that depletion of peremptories after she responded "No" when

the court asked if she was done. The record does not reveal which empaneled

jurors defense counsel would have struck if more peremptories had been

available. In any event, it is undisputed that neither R.M. nor A.A. were on the

empaneled jury that convicted defendant.

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B.

The juror removal issue posed here, which is the focus of defendant's

primary argument for reversal, concerns important constitutional and legal

principles.

The Sixth Amendment of the United States Constitution and Article I,

Paragraph 10 of the New Jersey Constitution both guarantee criminal defendants

the right to trial by an impartial jury. State v. Little, 246 N.J. 402, 414 (2021)

(citing State v. Williams, 93 N.J. 39, 61 (1983)). A defendant is "entitled to a

jury that is free of outside influences and [that] will decide the case according

to the evidence and arguments presented in court in the course of the criminal

trial itself." Williams, 93 N.J. at 60.

To achieve these constitutional objectives, a trial court has an

"independent obligation . . . 'to take all appropriate measures to ensure the fair

and proper administration of a criminal trial' . . . ." Little, 246 N.J. at 414

(quoting Williams, 93 N.J. at 62). "A 'vital aspect' of that responsibility is to

ensure the impaneling of only impartial jurors by ferreting out potential and

latent juror biases." Ibid. (quoting Williams, 93 N.J. at 62-63).

A critical responsibility of the trial court's supervisory function is to

decide whether a juror should be removed for cause. The parties can move to

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strike a juror for cause, or the court can sua sponte excuse a juror on that basis.

State v. Andujar, 247 N.J. 275, 296 (2021).

For-cause excusal of jurors is appropriate "when it appears that they would

not be fair and impartial, that their beliefs would substantially interfere with

their duties, or that they would not follow the court's instruction or their oath."

Ibid. After a comprehensive study of juror selection practices in our State

sparked by Andujar, the Supreme Court revised Rule 1:8-3(b) in 2022 to now

read, "If the court finds there is a reasonable basis to doubt that the juror would

be fair and impartial, the court shall grant the for-cause challenge . . . ."

(emphasis added).

The use of the word "shall" within the revised Rule strengthened the trial

court's obligation to assure that jurors are not empaneled when cause for their

dismissal is apparent. This change was part of systemic reforms adopted by the

Court to promote a fairer jury selection process and to reduce bias and

discrimination. The reforms include new presumptive restrictions on the

exercise of peremptory challenges based on discriminatory or improper

stereotypes, see Rule 1:8-3A, but are accompanied by "a low threshold . . . for

the granting of a for-cause challenge." Report & Recommendations of the

Subcommittee on Voir Dire & Peremptory Challenges 3 (2022) (emphasis

added). The subcommittee unanimously recommended "a liberal standard in

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dismissing jurors for cause," recommending the "relaxed" Rule 1:8-3(b)

language that the Court ultimately adopted. Id. at 8-9.

Case law instructs that "[a]n appellate court reviews the trial court's jury -

related decisions under the abuse of discretion standard." State v. Brown, 442

N.J. Super. 154, 182 (App. Div. 2015) (citing State v. R.D., 169 N.J. 551, 559

(2001)). "[T]he trial court is vested with broad discretionary powers in

determining the qualifications of jurors and [so] its exercise of discretion will

ordinarily not be disturbed on appeal." State v. Jackson, 43 N.J. 148, 160 (1964).

Challenges to excuse jurors for cause are thus reviewed for abuse of discretion.

State v. Simon, 161 N.J. 416, 466 (1999).

Notwithstanding that general deference, "an appellate court is not bound

by a determination when the 'particular circumstances present such a strong

likelihood of prejudice that, as a matter of law,' the juror should have been

removed." State v. Loftin, 191 N.J. 172, 192 (2007) (quoting State v.

Biegenwald, 106 N.J. 13, 91 (1987)). Moreover, defendant's arguments in this

appeal implicate generic questions of law about the eligibility of active -duty

police officers to serve on criminal juries in the counties where they work. We

consider those generic questions of law de novo. Manalapan Realty, L.P. v.

Twp. Comm. of Twp. of Manalapan, 140 N.J. 366, 378 (1995), see also State v.

Hyland, 238 N.J. 135, 143 (2019).

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Before the applicable statutes were revised in 1995, police officers and

persons "directly or indirectly connected with the administration of justice,"

along with other various classes of persons, were categorically ineligible to

serve on juries in this State. See N.J.S.A. 2A:69-1 (amended by L. 1995, c. 44).

That broad swath of categorically ineligible jurors produced serious difficulties

in yielding eligible jurors, more severely within certain counties. The system

also placed undue burden on citizens not covered by the statutory exemptions

by repeatedly asking them to serve.

A 1982 Report of the Jury Utilization and Management Task Force

commissioned by the Supreme Court found the exercise of then-existing

statutory exemptions resulted in excusal rates across counties of 7% to as high

as 56% during the 1980-1981 court year. 111 N.J.L.J. Index 37 (1983). The

Task Force recommended the reform of those occupation-based exemptions,

noting "[t]here is little sound basis for the across-the-board exemption of

occupations." Ibid. The Task Force recognized arguments that the exemptions

for police, fire and medical personnel were grounded in the public necessity of

the services they provide. Ibid. However, the Task Force noted that vacations,

holidays, and medical absences ordinarily can be accommodated within those

occupations without endangering the public, and the same accommodations

could be arranged when their members are called to jury service. Ibid.

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Despite the 1982 Report, the statutory exemptions remained unchanged

for over a decade. In June 1992, the New Jersey Law Revision Commission

issued a Report and Recommendation Relating to Juries (the "Law Revision

Report"). That report echoed the 1982 Task Force's criticisms of the broad

occupational exemptions. Id. at 2-3. The Law Revision Report recommended

replacing those exemptions with provisions permitting excusal from jury service

for severe hardship and deferral of service to a future date. Id. at 3. The

Commission noted that "[a] person's occupation is a factor to be considered in

relation to a person's suitability to sit on a particular jury, not as an absolute bar

to jury service." Id. at 4. (emphasis added).

In 1995, the present statute, N.J.S.A. 2B:20-1, was enacted, which

substantially narrowed the classes of persons ineligible for jury service. Among

other things, the categorical exemptions for police personnel and for persons

connected to the administration of justice were removed, as the Task Force

Report and the Law Revision Report had advocated. See L. 1995, c. 44.

Apart from these statutory developments, case law has addressed the

question of whether a citizen employed in law enforcement should be r emoved

for cause from a criminal jury because of that citizen's occupation. The leading

opinion in our State is Reynolds, a case which both parties have cited to us. 124

N.J. at 565.

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In Reynolds, the Court addressed whether the trial court in a murder case

should have stricken for cause two criminal jurors—a Deputy Attorney General

in the Division of Law assigned to represent the Lottery Commission, and an

investigator in the Division of Criminal Justice. Id. at 563. Neither juror was a

police officer. Under the then-existing statute, the Court concluded that neither

juror, although a "member[] of the law-enforcement community," was covered

by the statutory exemption for persons connected to the administration of

justice. Id. at 564.

Reynolds addressed whether the two jurors were otherwise ineligible "for

cause." Both jurors knew defense counsel in the case professionally from

previous litigation involving the Lottery Commission and as past colleagues in

the Division of Criminal Justice. Id. at 565. The investigator was also

challenged because, as defense counsel argued to the trial judge, his connections

with "the enforcement of the penal laws of this State" allegedly resulted in a

"proclivity to assume that State Police don't lie." Id. at 566.

The trial judge declined to remove either juror for cause. Id. at 565-66.

In doing so, the judge found credible the jurors' sworn assurances that they

would remain fair and impartial, noting their demeanor in responding to

questions during voir dire reflected impartiality and fairness. Id. at 566-67. The

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Court upheld the trial court's decision. However, the Court issued the following

guidance:

To avoid challenges such as this, we believe that in

criminal cases a court, on request of a defendant, should

tend to favor excusal of a member of the law-

enforcement community.

[Id. at 568 (emphasis added).]

In adopting this "tendency" approach, the Court observed in Reynolds that, in

contrast to parties in civil cases, "a criminal defendant would not be so easil y

assuaged" by law enforcement jurors' affirmations of impartiality. Id. at 565.

"Although strictly speaking an excusal for cause may not be required, prudence

counsels that a court, on request of a defendant in a criminal case, should be

inclined to excuse a member of the law enforcement community." Ibid.

The practice of other states on this police-as-jurors issue is varied. 5 Most

states currently do not have case law or statutes prohibiting officers from serving

on juries in criminal cases. Courts more commonly perform case-by-case

analyses to determine if law enforcement officers summoned as jurors have

actual biases that require their excusal for cause. Circumstances that indicate

5

See Law Enforcement Officers as Qualified Jurors in Criminal Cases, 72

A.L.R.3d 895 (1976) (discussing the varied practices among the states).

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an officer may be impermissibly biased include a relationship with a witness, a

close connection to the prosecutor's office, and a "pro-police" mentality.

That said, some states categorically prohibit police officers from sitting

on juries in criminal trials because of the potential for—or appearance of—

partiality on the jury. 6

The only state with a statutory prohibition, Oklahoma, provides that

"[j]ailers, or municipal or state law enforcement officers . . . shall be eligible to

serve on noncriminal actions only." 38 Okla. Stat. Ann. § 28 (emphasis added).

6

See, e.g., King v. State, 328 S.E.2d 740, 741 (Ga. Ct. App. 1985) (holding that

"if a police officer were challenged for cause in a criminal case, the challenge

[must] be granted"); Glover v. State, 552 S.E.2d 804, 806 (Ga. 2001)

(reaffirming "that a full-time police officer who is challenged for cause in a

criminal case must be excused," though declining to extend this rule to other law

enforcement personnel who do not have the power to arrest); Ellis v. State, 736

S.E.2d 412, 420-21 (Ga. 2013) ("A prospective juror must be excused for cause

if he is employed as 'a full-time police officer with arrest powers.' . . . That rule

does not require a trial court, however, to strike for cause a former law

enforcement officer."); State v. Butts, 159 S.W.2d 790, 793 (Mo. 1942) ("It

seems incompatible with justice that a defendant who has been apprehended by

the police, and against whom police officers are going to testify, should be tried

by a jury made up of police officers [from that same police department].");

Commonwealth v. Jones, 383 A.2d 874, 877 (Pa. 1978) (holding that the trial

court erred in refusing to strike a police officer forcause where the officer was

a member of the same police force which had officers testifying in the case and

the credibility of the police was a key issue); Rippy v. State, 550 S.W.2d 636,

642 (Tenn. 1977) (noting that "active or career police officers tend to have an

inherent prejudice that should preclude their [jury] service.").

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By contrast, opinions from many other jurisdictions expressly do not limit

police from serving on juries in criminal trials. 7 In these more permissive

jurisdictions, additional circumstances are generally required to demonstrate

that an officer's potential bias warrants excusal for cause. See, e.g., Edwards,

7

See, e.g., State v. Hill, 848 P.2d 1375, 1381 (Ariz. 1993) (reviewing a police

officer's inclusion in a criminal jury for abuse of discretion, even on request for

forcause removal); State v. Benedict, 119 A.3d 1245, 1250-54 (Conn. App. Ct.

2015) (declining to excuse a municipal police officer despite at least some

supervision of his department by state police who investigated the case because

insufficient detail linked the potential juror to any officer involved in the case);

Hall v. State, 12 A.3d 1123, 1125-27 (Del. 2010) (recognizing "law enforcement

officers are not automatically disqualified from serving as jurors in criminal

cases" but holding the juror, a correctional officer, should have been excused

because defendant was charged with assault of another inmate in the same

facility where the juror worked, incentivizing the juror to convict to "promote[]

a less hostile work environment and the personal safety of the officer."); State

v. Ballard, 747 So.2d 1077, 1079-80 (La. 1999) (overruling precedent

automatically disqualifying police from serving on criminal juries in fav or of a

juror-specific approach); Commonwealth v. Ascolillo, 541 N.E.2d 570, 573

(Mass. 1989) ("We decline to adopt a rule that the mere fact that a prospective

juror is a police officer, in the absence of a showing of prejudice or partiality,

or connection with the particular facts involved at trial, would form the basis to

sustain a challenge for cause."); State v. Hinojosa, 242 S.W.2d 1, 7 (Mo. 1951)

(limiting the holding in Butts, 159 S.W.2d at 793, to a preference that police

officers not be taken from their official duties to fill a jury panel); State v.

Edwards, 716 S.W.2d 484, 488 (Mo. Ct. App. 1986) ("the connection of

prospective jurors with law enforcement should be carefully scrutinized[,]" not

subject to automatic disqualification); State v. Montez, 789 P.2d 1352, 1372 (Or.

1990) (rejecting the argument that "common sense and human experience"

suggest police officers cannot be fair and impartial jurors in criminal cases);

Commonwealth v. Kelly, 134 A.3d 59, 61-65 (Pa. Super. Ct. 2016) ("A

prospective juror's status as a law enforcement officer in and of itself is

insufficient to require disqualification as a juror in a criminal case . . . [I]f a

police officer has a 'real relationship' to the case, he must automatically be

excluded").

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716 S.W.2d at 486-88 (holding that "additional circumstances" indicating

partiality were needed to justify excusal for cause); Shane v. Commonwealth,

243 S.W.3d 336, 338 (Ky. 2007) (as modified Apr. 9, 2008) (holding trial court's

denial of challenge for cause to excuse juror who said "he was 'absolutely' pro -

police and that he did not believe an officer would lie under oath" was abuse of

discretion).

Turning back to our own state, we bear in mind the systemic changes to

jury selection adopted by our Supreme Court after the comprehensive review

prompted by Andujar. Among those reforms is the adoption of a new provision

regulating peremptory challenges, Rule 1:8-3A. The Official Comment to Rule

1:8-3A explains that certain associations historically used by counsel to strike

jurors peremptorily can reflect conscious or unconscious improper

discrimination and are presumptively invalid. Pressler & Verniero, Current N.J.

Court Rules, off. cmt. on R. 1:8-3A (2024). The new provision places a burden

on the party using such a peremptory challenge to show that the reason for the

strike is related to the demands of being a juror in that particular case. Ibid. The

comment cites Wash. R. Gen. Application 37(h) for those presumptively invalid

reasons for a peremptory strike. Ibid. Some reasons that relate to relationships

with law enforcement include:

(i) having prior contact with law enforcement officers;

(ii) expressing a distrust of law enforcement or a belief

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that law enforcement officers engage in racial profiling;

(iii) having a close relationship with people who have

been stopped, arrested, or convicted of a crime; (iv)

living in a high-crime neighborhood; . . . (viii) having

friends or family members who were victims of crime .

...

[Wash. R. Gen. Application 37(h).]

This provision, although not expressly applicable to challenges for cause,

heralds a new post-Andujar approach in which past experiences with the

criminal justice system—whether as a crime victim or as a person accused of an

offense—do not automatically justify for-cause excusal. Instead, our present

revised system disfavors the invocation of traditional stereotypes and relies

more upon the individual responses and characteristics of the juror. To be sure,

we do not equate a juror's status as a law enforcement officer with membership

in a group that has historically been discriminated against in jury selection. Our

point instead is that since Andujar, the process is now more focused upon the

experiences and voir dire responses of individual prospective jurors.

The circumstances in this case suggest it may be useful for the case law

of our own state to be amplified, in light of the Court's general guidance thirty -

two years ago in Reynolds, and the more recent developments reforming jury

selection after Andujar. The Court's decision in Reynolds to eschew a

categorical ban on police officers serving as criminal jurors remains unaltered.

124 N.J. at 565. So does the Court's admonition in Reynolds that trial courts,

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on a criminal defendant's request, "should be inclined to excuse" a juror who is

a member of the law enforcement community. Ibid.

What factors should guide this inclination? The Public Defender argues

that active-duty police officers within the same county in which a criminal

defendant is being prosecuted "must work closely with" the prosecutor's office

"on a regular basis" as "a necessary component of their jobs." As argued by the

Public Defender, that relationship is indicative of an inability as jurors to

consider the evidence "with the measure of impartiality required by the law."

(citing Jackson, 43 N.J. at 160). On the other hand, the State, through the

Attorney General, maintains that a case-by-case and juror-by-juror assessment

of impartiality is more appropriate than presuming that police officers from

other municipalities within the same county cannot be fair and impartial jurors.

Having considered these arguments, the diverse practices of other states,

and the less-categorical thrust of the post-Andujar jury selection reforms, we

offer the following non-exclusive factors to guide the trial court's individualized

assessments of whether sufficient cause exists to remove a criminal juror

employed in law enforcement:

• whether the juror works for a federal or state agency, rather than a

municipal or county law enforcement agency;

• whether the juror has a civil enforcement position, rather than a job

focused on the enforcement of criminal laws;

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• the scope and nature of the juror's job functions, and whether the

juror is on active duty;

• the frequency and nature of the juror's interactions, if any, with the

county prosecutor's office;

• subject to confidentiality restrictions, the nature and extent of any

involvement by the juror in internal affairs investigations conducted

by the prosecutor's office;

• whether the case involves any subjects or criminal laws that have

been encountered by the juror within the scope of employment;

• whether a law enforcement officer is alleged to be a victim or

defendant in the case;

• the nature of the State's case and the anticipated defenses, including

whether the investigation will be criticized as deficient;

• the juror's responses to the court's voir dire questions and whether

they suggest partiality;

• the court's perception of the juror's candor and demeanor;

• any other pertinent information bearing on the juror's ability to be

fair and impartial.

These factors are neither complex nor surprising. They align with several

of the considerations mentioned in Reynolds or noted in the out-of-state cases.

When developed through open-ended queries, the relevant information may

readily emerge from the prospective juror's narrative responses. No one factor

is dispositive, although the factor concerning the extent of the juror's

interactions with the prosecutor's office ordinarily should have prominent

weight. By illustration, it can be pertinent whether the juror works in the police

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records room or as a school crossing patrol, rather than in the homicide or sex

crimes units that regularly interact with prosecutors. We anticipate this list of

factors will aid judges and attorneys to suitably develop the record in future

cases.

We reject the Public Defender's approach to require the for-cause removal

of active-duty police officers from other municipalities within a county because

those officers might interact with the county prosecutor's office. That approach

is overbroad and out of step with post-Andujar reforms that disfavor categorical

removals.

That said, we do endorse one categorical principle. Specifically, if the

juror is employed in any capacity by the same police department or the same

prosecutor's office that is involved in the present case, that juror must be excused

for cause upon counsel's request. There is too close a nexus and too high a risk

of partiality in those same-office circumstances. See, e.g., Jones, 383 A.2d at

877; Butts, 159 S.W.2d at 793-94.

C.

We proceed to apply these principles to the trial court's rulings declining

to strike jurors R.M. and A.A. for cause. As a threshold matter, we are satisfied

that defendant has standing to appeal those rulings, even though neither R.M.

nor A.A. sat on the empaneled jury. The fact that defendant used a peremptory

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challenge on A.A., and thereafter exhausted the remainder is sufficient prejudice

to enable the appeal. State v. Bey, 112 N.J. 123, 154 (1988).

With respect to R.M., we conclude the trial court erred in denying

defendant's request to strike him for cause. His voir dire answers reflected "a

lot" of experience with criminal investigations, such as the present case,

concerning domestic violence. He exhibited strong familiarity with the pertinent

criminal statutes, even referring to them by section number ("12-1 or 13-2").

Although R.M. did not personally know the officers and detectives

involved in this case, and his past interactions with the prosecutor's office were

not explored, we agree with defendant that his special job-related knowledge of

domestic assault situations and the applicable criminal laws raised substantial

concerns about his eligibility to serve. In addition, as we noted above in

describing defense counsel's trial strategy and summation—including calling the

lead police detective as a hostile witness—the defense argued this case was

poorly investigated for multiple specific reasons.

Bearing in mind the Court's adoption in Reynolds of a general inclination

to grant defendants' requests to remove police officers for cause, we conclude

the trial court misapplied its discretion in denying defendant's request to remove

R.M. That error, however, was harmless because defense counsel did not

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expend a peremptory challenge to remove R.M., and he was not on the jury that

tried the case.

The circumstances of A.A. present a closer call. As we noted, the voir

dire of A.A. was brief and shorter than R.M.'s questioning. A.A. was not

familiar with any of the witnesses and said nothing about past or present

interactions with the prosecutor's office. Unlike R.M., A.A. did not say he had

substantial experience with domestic violence investigations. He had only been

a police officer for three years. Additionally, unlike R.M., A.A. did not cite or

refer to the criminal statutes.

Based on his responses and commitment to be open-minded and fair, the

court denied defendant's request to excuse A.A. for cause. We do not regard

this ruling to be an abuse of discretion on the limited record that was developed.

We therefore affirm the ruling.

III.

The rest of the arguments presented by defendant warrant no more than

brief discussion.

A.

Defendant argues that his convictions should be reversed because the trial

court abused its discretion by not granting a mistrial after R.S. described a prior

bad act by defendant. Specifically, during its direct examination of R.S. , the

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State asked: "out of those 20 to 25 times that you were on his boat before October

2nd, 2018, how many other times did you end up in the Hudson River?" R.S.

answered: "One other time he pushed me in, but he passed it off as a joke. And

the water was—it was low tide and that was in the beginning, like, the first

couple of days that we had known each other." Defendant objected that this

testimony violated N.J.R.E. 404(b)(1), the prior bad acts rule, and moved for a

mistrial. The trial court found the testimony divulged "not necessarily a prior

bad act." Nevertheless, the court struck the testimony from the record and

instructed the jury to disregard it in their deliberations.

A mistrial is unnecessary if an "appropriate alternative course of action"

is available, such as delivery of a curative instruction. State v. Smith, 224 N.J.

36, 47 (2016) (citing State v. Allah, 170 N.J. 269, 281 (2002)). When

inadmissible evidence erroneously reaches the jury, new trials should not be

ordered unless the error was "clearly capable of producing an unjust result."

State v. Yough, 208 N.J. 385, 397-98 (2011) (citing R. 2:10-2).

The State argues any prejudice was mitigated by the court's curative

instruction and by striking the question and testimony from the record. We

concur with the State's position. It was improvident for the witness to refer to

the prior situation in which defendant pushed her into the water as an alleged

joke. The State presented no valid exception under N.J.R.E. 404 to justify this

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"bad act" testimony. Even so, the court appropriately issued a cautionary

instruction to the jury to disregard the brief testimony. It is presumed that jurors

will heed the trial judge's instructions. State v. Herbert, 457 N.J. Super. 490,

503 (App. Div. 2019).

Further, the prejudice from this fleeting allusion to a "joke" is not obvious.

The prosecutor did not refer to the remark in his closing argument. In addition,

the measured verdict rendered by the jury does not reflect hostility to the

defendant's arguments. The jury acquitted him of the choking charge and found

him guilty of only the lesser included assault offense, reflecting skepticism

about the actual severity of the injuries the victim claimed. We affirm the court's

denial of a mistrial.

B.

Defendant next argues that his convictions should be reversed because the

trial court committed reversible error by admitting hearsay statements by

medical personnel who referred to the incident between him and R.S. as an

"assault." We reject this contention.

On cross-examination by the State of the physician's assistant who treated

R.S., the witness and prosecutor each described the cause of the injuries as an

"assault" since that term had been used in the related medical report. Defense

counsel objected to the second mention of the term "assault" as inadmissible

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hearsay. The trial court sustained the objection at sidebar, although it did not

strike the testimony or instruct the jury to disregard it.

On appeal, defendant relies on State v. Gardner, 51 N.J. 444 (1968), which

holds that statements related to the cause of a patient's injuries are inadmissible

hearsay not covered by the hearsay exception for statements made for the

purpose of diagnosis or treatment, presently codified as N.J.R.E. 803(c)(4).

Further, defendant contends the term "assault" is a legal conclusion for the jury

to find after considering the underlying facts, and therefore is not a proper

subject of opinion testimony. See State v. McLean, 205 N.J. 438, 459-60 (2011).

These arguments are unavailing.

The trial court did not abuse its discretion by admitting this testimony

referring to the wording of the medical record. The report relaying R.S.'s

hearsay description of an "assault" was admissible under N.J.R.E. 804(c)(4) as

a statement made for the purpose of medical diagnosis or treatment. Her

disclosure to the medical provider about being "assaulted" was a "reasonably

pertinent" detail to medical diagnosis and treatment. Palmisano v. Pear, 306

N.J. Super. 395, 400 (App. Div. 1997). The term "assault" is a common

shorthand reference to hitting or kicking, distinguishing acute injuries from

systemic traumas such as a car accident. The description was reasonably

pertinent to how the medical providers would diagnose and treat R.S.

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Even if we were to deem this portion of the trial testimony improper, it

was not capable of causing an unjust result. R. 2:10-2. The term "assault" was

inherently part of the vernacular of the case. Defendant was charged with an

aggravated "assault." The prosecutor repeatedly and appropriately used the

word "assault" in both his opening and closing statements, as did the court in its

preliminary and final charges to the jury, without any objection by the defense.

A defense witness testified on redirect that R.S. said she had been "beaten . . .

kicked, and . . . choked"—all of which are vivid terms akin to "assault." The

incremental effect of her hearsay description of the incident to the physician's

assistant as an assault was inconsequential. The error, if any, provides no

adequate basis to overturn defendant's convictions.

C.

As his appellate counsel's last point, defendant contends he must be

resentenced because, during the course of its oral decision at sentencing, the trial

court alluded to his previous arrests that did not result in criminal convictions.

Defendant argues the trial court's findings of aggravating factors three, six and

nine were tainted by these references to arrests.

We discern no reason to remand for resentencing. We acknowledge that

in State v. K.S., 220 N.J. 190, 265-66 (2015), the Court held that courts should

not rely upon arrests that do not result in convictions as grounds to deny

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defendants entry into a pretrial intervention ("PTI") program unless their guilt

of those offenses are independently established by the record.

But even if K.S. were extended from the PTI context to sentencing, the

references to arrests here manifestly did not tip the scales. As the sentencing

judge rightly noted, defendant has six previous indictable convictions. Those

convictions were more than ample to justify the findings of the various

aggravating factors. In addition, the five-year term imposed, given defendant's

status as a persistent offender, was neither an abuse of discretion nor a shock to

the conscience. State v. Roth, 95 N.J. 334, 365 (1984).

D.

The arguments raised in defendant's pro se supplemental brief, insofar as

they do not overlap with his counsel's points, lack sufficient merit to warrant

discussion in this written opinion. R. 2:11-3(e)(2).

Affirmed.

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