On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. SGJ-0014-05-89.
Before Judges Stern, Collester and Fall.
The opinion of the court was delivered by: Stern, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Defendant was charged in seven counts of a seventy-count indictment involving eighteen co-defendants. Defendant and six co-defendants were jointly tried on the first nineteen counts of the severed indictment. The pre trial proceedings commenced in October 1991; jury selection occurred between March and June 1992, and the trial took place from June 1992 until the verdict was returned on March 5, 1993. Counts five and six were dismissed as to defendant during trial, and he was found not guilty on counts one, two, eight and nine. Defendant was convicted on count four only. That charge had been amended during trial from a conspiracy to commit various offenses, to conspiracy to receive stolen property. He was sentenced to seven years in the custody of the Commissioner of Corrections.
Defendant and his co-defendants raised numerous issues on their direct appeals which were consolidated for purposes of our opinion. In that opinion, we addressed issues raised in common with respect to the claims of jury taint and the jury's consideration of the issues based on extraneous and irrelevant factors. The background with respect to this claim and the present appeal is detailed in our prior opinion, State v. Bisaccia, 319 N.J. Super. 1, 8-11 (App. Div. 1999):
[F]ollowing a report that a juror's car was shot at on the evening of February 16, 1993, the State moved on February 17, 1993, to have the jury sequestered. After granting the motion, the trial judge discharged the juror whose car was shot at and met with the remaining jurors in chambers, outside the presence of defendants and counsel, to discuss the sequestration. At the meeting, juror number 8, M.B., told the judge that he could not "make a fair decision here." The judge made no inquiry as to M.B.'s comment and advised M.B. that he would remain on the jury. At a subsequent meeting the next morning attended by the judge, jury and Court Administrator, M.B. again addressed the judge on the same subject. The record reflects the following exchange:
[M.B.]: As I was trying to say to you yesterday, your Honor, you know, I haven't been to court in some time, I have been on the job, when you are on the job you hear things you don't want to hear, and like I said, I want to make a fair decision, but not probably, he should be interrogated in [sic] especially in light that Mr. Fulco jumped on that Saturday and yelled right at him, [M.B.], come forward. He should be inquired as to whether or not those actions by Mr. Fulco had any -- play any part in his ability to be fair ....
The judge denied the application to question M.B. The judge stated that he had previously conducted three interrogations of the jury regarding their exposure to mid- trial publicity, and had frequently instructed the jury not to discuss the case with anyone. He presumed the jurors followed his instructions. With regard to M.B., the judge held:
the Court is of the sound view that an insufficient foundation has been established to warrant any further investigation. To entertain a voir dire of this juror and other jurors, based on this colloquy [between the judge and M.B.], would, in my judgment, be one -- an application which is unfounded and without any merit.
The judge stated that it was apparent to him based on M.B.'s demeanor, that M.B.'s statements "were motivated [by] nothing other than an attempt to gain the sympathy of the Court relative to the need for his continued confinement as a sequestered juror." He emphasized that M.B. only claimed he could not be fair after he learned that he was to be sequestered.
Subsequently, the State suggested that because of defendants' objections to M.B., he should be "designated as the alternate juror." Defendants objected; they believed that M.B. should be removed from the jury altogether and had possibly tainted the entire jury. The judge denied both requests and the alternate was selected "by random" drawing.
On the second day of deliberations, March 4, 1993, the jury sent out the following note to the trial judge at 3:07 p.m.: "we, the jurors, are at a standstill. Juror Number 8 and 9 have determined a certain verdict and [are] not willing to discuss any matter with any of us. We feel that we need someone to intervene so that we can continue our deliberation. Thank you." Most counsel requested that the judge instruct the jury to continue its deliberations. Bisaccia's counsel moved for a mistrial. The judge denied the mistrial motion because he did not believe that the note showed that the jury could not be fair and impartial. However, he reminded the jurors of their obligation to deliberate with each other.
At 6:05 p.m. the same day, the jury sent another note to the judge:
[W]e have a juror that is in fear of his life. He feels he cannot render a fair decision. We have tried numerous attempts at deliberating, to no avail. We would like to know if at all possible the alternate can take his place.
Also, we would like to adjourn for today. Thank you.
The record does not reveal the identity of the juror. The attorneys for defendants Fulco and DeStefano asked that a mistrial be declared on the basis that the juror's remark had "tainted" the entire jury. The other defense counsel requested that the jury be instructed that it must continue to deliberate. In addition, Bisaccia's attorney asked that the jury be interrogated. The prosecutor recommended that the juror in question "be excused from service" because he had indicated that he could not render a verdict based on the evidence.
The judge denied the mistrial motion and the motion to dismiss the juror. He reasoned that the juror's refusal to deliberate was "nothing other than an attempt by a juror to avoid the responsibility of deliberation; to avoid the unpleasantries of sequestration; to attempt to get off the jury ...." Instead, he instructed the jury:
Now, I'd like -- I'm going to say something to the jury and I'd like all of you to listen to me. Each one of you has taken an oath in this case at the very beginning. Part of that oath is if the occasion warrants deliberations, to deliberate in accordance with the Court's instruction. Deliberate in accordance with the evidence in this case. Plus, I indicated to you yesterday, your verdict cannot be true unless it is strictly and solely in accordance with the evidence.
You have a responsibility now and a duty to deliberate. ... And I instruct you to continue with your deliberations and you will continue in accordance with the manner that I've instructed you. [State v. Bisaccia, supra, 319 N.J. Super. at 8-11 (footnote omitted).]
In our opinion, we directed a remand for an interview of jurors to determine if the jury was tainted by extraneous factors, specifically M.B.'s statement of an inability to be "fair" and a juror's statement of "fear." We indicated that if a new trial was denied, the appeal could be reinstated and that we would review the issues not considered on the direct appeal as well as the remand proceedings. With respect to the remand and the burden thereat, we pointed out that courts in other jurisdictions had, on occasion, endeavored to conduct a necessary voir dire even after the jury had been discharged. 319 N.J. Super. at 14-20. In addition, we said the following:
We conclude that the trial judge should have questioned M.B. about his statements that he could no longer be fair, particularly after indicating that during the trial's recess he had heard things he did not want to hear. M.B.'s statement revealed that he may have been exposed to outside information. The jury had recently come back from an almost month long break in the trial. It was at least possible that M.B. may have been exposed to prejudicial information during that time and may have shared that information with other jurors. Moreover, while the judge understood M.B.'s statements may be read to be a mere reaction to sequestration or an effort to get out of jury duty, which in itself required further inquiry, there were other inferences warranting development. Without the judge questioning M.B. about what he meant by his statements, we have no way of knowing what his exposure may have been or how prejudicial that exposure was. As the Court stated in Bey, supra, 112 N.J. at 89-90, without a voir dire, "potential prejudice to extremely significant constitutional rights ... might otherwise go wholly undetected." The prior voir dire referred to by the judge as a basis for not interviewing M.B. on this occasion all occurred before the January 1993 break and the indication that during the break he may have heard something unduly prejudicial to at least one of the parties.
The failure to interview M.B. takes on added significance in light of the juror notes received by the judge during deliberations. While a judge cannot make inquiry into the deliberative process as such, or the mental processes by which a juror reaches his or her decision, State v. LaFera, 42 N.J. 97, 106 (1964), State v. Kociolek, 20 N.J. 92, 100 (1955) (involving post-verdict applications), the fact that the jurors reported that M.B. (juror number 8) at first declined to deliberate and that a juror, perhaps M.B., was "in fear of his life," required at least inquiry into whether one or more jurors were concerned about extraneous matters other than the evidence and law as charged by the judge. See State v. Valenzuela, 136 N.J. 458 (1994); LaFera, supra; Kociolek, supra; State v. Vergilio, 261 N.J. Super. 648, 655-56 (App. Div.), certif. denied, 133 N.J. 443 (1993) (inquiry required of distraught juror who sought to talk with judge).
New Jersey courts have permitted and, indeed, have required voir dire inquiry of jurors, even while deliberating, about the possibility and impact of outside or non- evidentiary extraneous considerations or influences affecting the ability of a juror to be fair and impartial. See State v. Hightower, 146 N.J. 239, 248-49, 265-67 (1996); State v. Grant, 254 N.J. Super. 571, 580-87 (App. Div. 1992). See also Valenzuela, supra (requiring the court to determine why a juror was unable to continue deliberating); Vergilio, supra (requiring voir dire of distraught juror).
The issue now before us, therefore, is the remedy to be employed when there is doubt about the integrity of the deliberative process, there is an indication that at least one juror may have been affected by outside influences, and the trial judge conducted no inquiry to ...