On certification to the Superior Court, Appellate Division, whose opinion is reported at 157 N.J. Super. 231 (1978).
For reversal and remandment -- Chief Justice Hughes and Justices Mountain, Pashman, Clifford, Schreiber and Handler. For affirmance -- None. The opinion of the court was delivered by Clifford, J.
[79 NJ Page 252] On February 11, 1976 a security guard and one of defendant's confederates were killed in the course of an armed robbery of a bank. Defendant's convictions for felony murder of the guard, on which he was sentenced to life imprisonment, and for various other offenses in connection with the same incident, for which he received lesser concurrent terms, were affirmed by the Appellate Division, State v. Trent, 157 N.J. Super. 231 (1978). However, on the strength of our decisions in State v. Canola, 73 N.J. 206
(1977), and State v. Alston, 73 N.J. 288 (1977), defendant's second conviction for felony murder -- that of the accomplice, who had been killed by the bank guard's gunfire -- was set aside as not being within the felony murder rule under N.J.S.A. 2A:113-1. We granted certification, 77 N.J. 507 (1978), to review the remaining convictions, particularly as affected by the trial court's application of our "alternate juror" rule, R. 1:8-2(d), and by our decision last term in State v. Miller, 76 N.J. 392 (1978).
The salient facts are adequately recited in the Appellate Division opinion. That court was concerned with whether the trial court had properly exercised its discretion in discharging one of the original twelve jurors selected to deliberate and replacing her with an alternate. Under the specific circumstances there presented and based upon the detailed factual findings made by the trial court, the substitution of an alternate juror during deliberations was held not to constitute a mistaken exercise of the trial court's discretion nor to prejudice defendant's right to a fair trial. 157 N.J. Super. at 240.
We need not decide whether that conclusion is correct, for we are satisfied that the convictions cannot stand in the face of what occurred after the decision to substitute an alternate juror had been made. The significant facts in that regard are that after the trial court had delivered its charge to the jury, including, of course, the two alternates who had been impanelled with the regular jurors, the twelve jurors finally selected commenced their deliberations at 10:23 A.M. Approximately six and a half hours later, at 4:45 P.M., the juror who was ultimately replaced reported by note to the trial court her inability to continue. After twice interviewing the juror in the presence of counsel, the trial court decided to excuse her. Thereupon the first alternate chosen was told of her selection and that she would "shortly go into the jury room and continue with deliberations with the other jurors", who then were recalled to the courtroom and admonished
(for reasons not at all clear, there being no suggestion from the jury that it was having difficulty in reaching a verdict) to put aside any bias, prejudice or emotional factor and render a verdict based upon the evidence. At no point were either the alternate or the original eleven jurors instructed on the necessity of starting their deliberations over again from the beginning.
No sooner had the first chosen alternate joined her colleagues in the jury room than she too claimed inability to continue due to illness. At that juncture the last remaining alternate juror was summoned to the courtroom alone and given the following instruction:
THE COURT: Miss Urban, would you kindly come forward? Miss Urban, you've been an alternate juror on this case. For certain reasons one or two of the jurors have been excused for cause and you are going to be substituted as a juror on the case. So, you will go into the jury room and continue with deliberations with the jury. You are to abide by all the law that I have given to you and apply it to the facts in order to arrive at a fair and just verdict. (Emphasis added.)
This time no supplemental instruction whatsoever was given to the remaining eleven jurors selected originally who, as we have pointed out, had been in the jury room for about six and a half hours before their deliberations were first interrupted. Some time thereafter (the record is unclear, but it appears to have been after 6:20 P.M. and before 7:30 P.M.) the jury returned its guilty verdict.
The point of our concern is the trial court's failure to have instructed the jury to begin its deliberations anew after the final alternate juror had been substituted. This issue was not raised at trial, nor was it presented to the Appellate Division or considered by it as a ground for reversal. Defendant first made the argument in his supplemental brief filed in this Court, doubtless encouraged by two cases lending support to his ...