SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

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April 7, 1999

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The opinion of the court was delivered by: Kestin, J.A.D.

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Ivelisse Torres, Public Defender, attorney for appellant (Robert L. Sloan, Assistant Deputy Public Defender, of counsel and on the brief). Patricia A. Hurt, Essex County Prosecutor, attorney for respondent (Debra G. Lynch, Assistant Prosecutor, of counsel and on the brief).

, [5]      STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. ALVIN ADAMS, DEFENDANT-APPELLANT " />

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April 7, 1999

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ALVIN ADAMS, DEFENDANT-APPELLANT


Before Judges Long, Kestin and Wefing.

The opinion of the court was delivered by: Kestin, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted: February 9, 1999

On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Essex County.

Defendant was convicted of purposeful or knowing murder, felony murder, first degree robbery, second degree burglary, and two counts of second degree conspiracy. After appropriate mergers, he was sentenced to two consecutive terms of imprisonment: a life term with thirty years of parole ineligibility on the murder conviction, and an extended (persistent offender) term for life with twenty years of parole ineligibility on the robbery conviction. VCCB and SNSF assessments totaling $100 and $150, respectively, were ordered.

On appeal, defendant raises the following issues:

"POINT I SINCE THE JUROR EXCUSED DURING DELIBERATIONS WAS NEITHER ILL NOR UNABLE TO CONTINUE UNDER R. 1:8- 2(D), HIS REMOVAL AND REPLACEMENT WITH AN ALTERNATE JUROR VIOLATED DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL BY AN IMPARTIAL JURY. U.S. CONST. AMENDS. VI, XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10. "POINT II IMPROPER SUMMATION REMARKS DISMISSING DEFENSE COUNSEL'S ARGUMENTS ABOUT THE SUFFICIENCY OF THE STATE'S PROOFS AS "LAWYER TALK," DISPARAGED DEFENSE COUNSEL AND DEPRIVED DEFENDANT OF THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMENDS. XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10. (Not Raised Below) "POINT III THE IMPOSITION OF CONSECUTIVE SENTENCES FOR RELATED OFFENSES, WITHOUT A STATEMENT OF REASONS, WAS MANIFESTLY EXCESSIVE."

We conclude that the trial Judge erred in excusing a juror during deliberations and, accordingly, reverse.

The pertinent facts are as follows. In June, 1990, 81-year-old Lucy Pascale was killed by manual strangulation. Her children, who found the body, also discovered that their mother's bedroom had been ransacked. Defendant, a maintenance man in the victim's building, was originally among the suspects, but the police had no sufficient basis upon which to make an arrest. Defendant and an accomplice were arrested about six years later, following a tip to the police from an informant. With the benefit of the Miranda*fn* warnings, defendant gave the police a statement which included some specific details about the crime.

At trial, defendant alleged not only that his statement to the police had been coerced by means of physical force, but also that the police told him what to say in his statement. Defendant's accomplice, who had pled guilty to conspiracy and burglary, also made an allegation of physical coercion when he was cross-examined by defense counsel. A police officer who was present at the interrogation denied the assertions.

The allegation of police coercion had an impact on the jury's deliberations. Fifty-five minutes after deliberations had begun, the Judge received a message from one of the jurors stating: "During the first few minutes of the deliberations, [Juror number eight] stated his relative told him that police often beat accused criminals." Juror number eight had disclosed on voir dire that he had a cousin who was a police detective.

Following receipt of the note, the trial Judge interviewed juror number eight individually in chambers, on the record, with counsel present, concerning the reported incident in the jury room. The juror stated that his comments had been blown out of proportion, but that whatever statement he had made flowed more from "what I have experienced personally growing up" than from conversations with his cousin. After some colloquy with counsel out of the juror's presence and a further interview with the juror on his capacity to decide the facts based upon the evidence alone, which the juror said he could do, the trial Judge determined that juror number eight would be excused. The trial Judge had opined that the juror was "interjecting his own experiences [into the deliberations, and] that is not what jurors are supposed to do, they're supposed to decide the case based upon what the evidence is in the case."

The trial Judge then interviewed three other jurors individually in chambers, also with counsel present. The juror who had sent the note related what had occurred during deliberations to cause him to write it. The foreperson was next. She also, in somewhat less detail, described what had transpired in the jury room to precipitate the note. The trial Judge then asked her if she could decide the matter solely upon the evidence free from extraneous influence. An affirmative response was given. Juror number two was next. He verified that one juror had related what he had been told by a police officer relative, and indicated that, notwithstanding, he could discharge his juror responsibilities fairly and based solely upon the evidence.

In an ensuing colloquy with counsel alone, after the trial Judge restated his intention to excuse juror number eight and impanel an alternate, defense counsel moved for a mistrial. The motion was denied. The entire remaining jury panel was then brought into the courtroom and heard a reinstruction from the Judge about the jury's general duty to decide the issues based upon the evidence, with a concluding question whether each individual could "decide this case based solely on what you have heard in the courtroom, putting aside any extraneous materials that somebody may have told you in the jury room." Each juror when addressed individually for a response answered in the affirmative. An alternate was then impaneled and the matter was resubmitted to the jury with a supplemental charge.

After reviewing the record, we conclude that the procedures employed by the trial Judge to deal with the problem presented amounted to an undue intrusion upon the jury's deliberations, and that the method he chose to resolve the matter was erroneous. Accordingly, the convictions that resulted must be vacated, and the matter remanded for a new trial.

The Sixth Amendment to the United States Constitution and Article I, paragraph 10 of the New Jersey Constitution guarantee the right to trial by an impartial jury, i.e. an unbiased jury that renders a verdict only on the basis of the evidence presented in court, not extraneous material such as outsiders' communications or rumors that circulate within the jury itself. State v. Williams, 93 N.J. 39, 60-61 (1983). If juror bias is discovered or the jury's deliberations have been tainted by the introduction of extraneous material, the correct remedy depends on the stage of the proceedings that has been reached.

Before deliberations commence, discharge and substitution of any "offending" juror may be warranted if the court determines that the remaining jurors can set aside the extraneous material and decide the case on the basis of the evidence. State v. Hightower, 146 N.J. 239, 254 (1996) (quoting State v. Trent, 157 N.J. Super. 231, 239) (App. Div. 1978), rev'd on other grounds, 79 N.J. 251 (1979)); State v. Nelson, 318 N.J. Super. 242 (App. Div. 1999). Once the case has been given to the jury, however, discharge and substitution is no longer appropriate when juror bias, outside influences, or problems arising in the interaction between jurors are discovered. In such instances, once the court determines that a taint exists, it must discharge the entire jury, i.e., declare a mistrial. Substitution of one juror for another, to address a problem that arises after deliberations have commenced, is not among the choices available to the trial Judge, except in limited circumstances. Hightower, supra, 146 N.J. at 254, 255-56 (quoting Trent, supra, 157 N.J. Super. at 239).

To ensure the jury's protection from interference on the part of the Judge, the remedy of discharge and substitution during deliberations is permitted only in those instances where a juror falls ill or is otherwise unable to continue for strictly personal reasons. R. 1:8-2(d). With respect to the question when a juror may be deemed "unable to continue," the New Jersey Supreme Court has held that

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