On certification to the Superior Court, Appellate Division, whose opinion is reported at 262 N.J. Super. 392 (1993).
Stein, Wilentz, Clifford, Handler, Pollock, O'Hern, Garibaldi
The opinion of the Court was delivered by
In this appeal we consider whether the trial court properly exercised its discretion pursuant to Rule 1:8-2(d) in discharging a juror and substituting an alternate juror after the jury had begun deliberations. The reconstituted jury convicted defendant of second-degree sexual assault and acquitted him of fourth-degree theft. The Appellate Division reversed the conviction, citing as errors the dismissal of a juror who was not clearly unable to continue, the court's failure to choose by lot which alternate juror would replace the dismissed juror, and the substitution of a juror at a stage in the deliberations when it appeared the other eleven jurors had reached agreement. 262 N.J. Super. 392, 398 (1993). The Appellate Division, concluding that the cumulative weight of those errors warranted reversal, remanded for a new trial. Id. at 400. We granted the State's petition for certification, 133 N.J. 446 (1993).
A grand jury indicted defendant, Rafael Valenzuela, on charges of first-degree aggravated sexual assault and second-degree robbery stemming from his alleged rape of a young woman acquaintance
who had agreed to accompany him to a Department of Motor Vehicles office to act as an interpreter. The trial progressed for three days before a fourteen-member jury panel. At the close of the State's case, the trial court, finding no evidence that force had been used during the alleged theft of $500 from the victim's coat pocket, reduced the robbery charge to the lesser-included offense of fourth-degree theft and also reduced the first-degree aggravated-sexual-assault charge to second-degree sexual assault.
The defense rested on the third day of trial. After instructing the jury on the applicable law, the trial court reduced the jury to twelve members by selecting by lot the names of two jurors. The court designated those jurors, in the order they were selected, as the first and second alternate jurors. The jury left the courtroom to deliberate at 11:10 a.m. The court retained the alternate jurors in a separate location, stating, "You might be needed if somebody becomes ill on the jury." Fifty minutes later the jury sent a note out to the court to the effect that one member "doesn't want to be" a juror. The court brought the jury out, determined that Juror Number 9 was the reluctant juror, and then questioned Juror Number 9 out of the presence of the other jury members.
THE COURT: Miss Pollack, do I take it right that you don't want to participate?
MISS POLLACK: I just can't, can't make an opinion on this case --
MISS POLLACK: -- Yes or no, you know. Then -- they all are ganging up on me now.
THE COURT: I don't want to know --
MISS POLLACK: That's what --
THE COURT: Listen to me. I don't want to hear from you what they are saying in there. I don't want to know from you what your position is on this case.
My question of you is, are you willing to sit and discuss the case with them?
MISS POLLACK: No, I don't want to.
THE COURT: You don't want to?
MISS POLLACK: They have a feeling that I'm not going to go with them or something, is what they are saying.
THE COURT: Do you understand what your function is?
THE COURT: Are you willing to try to follow your oath or not?
MISS POLLACK: They just have an opinion that they don't want me. That's what I can see now, and I think I would be better if I went -- I wouldn't have nothing in this.
THE COURT: When you're saying, they have a thing that they don't want you, are you saying that --
MISS POLLACK: I don't know what their problem is, but that's what they are saying, now.
THE COURT: Do you wish to continue as a juror or not?
THE COURT: Are you telling me that you are unable to continue because of some personal feeling you have about the case?
THE COURT: Can you tell me why?
MISS POLLACK: No, I just can't make an opinion, that's what I think.
THE COURT: You can't make a opinion?
THE COURT: You can't decide it, you mean?
MISS POLLACK: That's right.
The court then conferred with counsel. The prosecutor stated that he had observed the juror during trial talking to herself and "acting * * * somewhat differently [from] anybody else I've ever seen on a jury." The prosecutor also stated, "I just feel she doesn't want to be with the rest of the jurors." Defense counsel observed that Miss Pollack had been "attentive to the case" and that her responses to the court's questioning suggested "a bitter dispute between jurors." Defense counsel also noted, referring to Rule 1:8-2(d), that the juror did not seem "ill or, certainly, she's not dead or disabled and, basically, I think she has to go there and make up her mind * * * ." The Judge noted that on one occasion he had observed the juror outside the courtroom "making some sounds to herself."
The court questioned Juror Number 9 further regarding her understanding of a juror's function and her willingness to participate:
THE COURT: Miss Pollack, do you understand it is the function of the 12 people who are in that room to talk about the case, talk about the facts they've heard and apply ...