The opinion of the court was delivered by: LaVECCHIA, J.
On appeal from and certification to the Superior Court, Appellate Division whose opinion is reported at 336 N.J. Super. 115 (2000) (State v. Williams).
On appeal from and certification to the Superior Court, Appellate Division. (State v. McCloud).
This appeal presents the Court with the opportunity to determine whether financial hardship can rise to the level of an "inability to continue" under Rule 1:8-2(d) to justify the excusal of a deliberating juror. Because we answer that question in the affirmative, we are called on to address whether the trial court committed plain error by exercising its discretion in this matter to excuse a deliberating juror on that asserted ground. We hold that the trial court did not abuse its discretion, and that its actions did not amount to plain error. Accordingly, the determination of the Appellate Division is reversed.
On January 23, 1996, defendants Joel Williams and Monroe McCloud were arrested in the City of Camden after selling drugs to undercover police officers. Defendants were indicted on four counts: (1) third degree conspiracy, in violation of N.J.S.A. 2C:5-2 (Count One); (2) third degree possession of a controlled dangerous substance, in violation of N.J.S.A. 2C:35-10a (Count Two); (3) third degree possession with the intent to distribute a controlled dangerous substance, in violation of N.J.S.A. 2C:35- 5a(1) and N.J.S.A. 2C:35-5b(3) (Count Three); and (4) third degree possession of a controlled dangerous substance with intent to distribute within one thousand feet of a school zone, in violation of N.J.S.A. 2C:35-7 (Count Four).
Defendants were tried jointly and the following facts were adduced. On January 23, 1996, at 2:20 p.m., Investigators Jerome Alan Kee and William Gonzalez were working undercover near Seventh Street and Woodlynne Avenue in Camden. The officers were engaged in an undercover "buy-bust" operation. During a "buy- bust" operation an officer purchases drugs from a "drug corner" and then calls a backup unit to make an arrest based on a description of the suspect. Once the backup unit detains the suspect, the "purchasing" officer makes an identification.
Investigators Kee and Gonzalez drove to the intersection of Seventh Street and Woodlynne Avenue and observed three men standing on the corner engaged in conversation. Kee made eye contact with one of the men, later identified as defendant Monroe McCloud. As Kee exited the vehicle, McCloud approached the officers' vehicle and explained that they had to move the automobile from its location because police were in the area and they appeared "too obvious." While Gonzalez moved the vehicle, Kee walked toward the other two individuals. He observed the shorter of the two, later identified as Noah Xavier, run into a nearby abandoned house. Defendant Williams instructed Kee to stand and wait for Xavier. Xavier then emerged from the abandoned house and signaled Kee to join him inside.
Once inside, Xavier asked Kee what he wanted and Kee responded "two nicks." "Two nicks" are five dollar bags of cocaine. Xavier gave Kee the drugs in exchange for a twenty dollar bill. Kee left after he received his change and proceeded to the investigators' vehicle. He observed McCloud and Williams on the corner.
As Kee approached the vehicle, he signaled to Gonzalez that he made a legitimate "buy." Gonzalez radioed the backup units and Kee relayed their location and a description of the suspects. Kee testified that forty-five seconds transpired between the drug purchase and the arrival of the backup team. The backup team took three individuals into custody.
Defendants' attorneys raised discrepancies between the description of the three suspects' skin tones given to the backup team in the radio transmission and the appearances of Williams and McCloud at trial. Further, Kee could not provide a positive in-court identification of defendants due to a two-year time lapse between the arrests and trial. Nonetheless, Kee testified that the three men he identified were the same three taken into custody by the backup team. Gonzalez corroborated Kee's testimony. The parties also stipulated that fingerprints taken of defendants on the day of the arrests matched the fingerprints of defendants at the time of trial.
Investigator Jeffery Moore testified that on January 23, 1996, he too participated in the "buy-bust" operation as a member of the backup arrest team. After his team arrested the three individuals, Investigators Kee and Gonzalez conducted a "ride-by" identification procedure whereby they identified the three men taken into custody as those involved in the drug sale. Investigator Charles Farrell also testified that he participated in the January 23, 1996, "buy-bust" operation. Farrell testified that he apprehended the men described by the undercover officers. Defendant Williams testified that on January 23, 1996, he was returning home from his sister's house. As he walked down the street, he saw four individuals standing on the corner of Seventh Street and Woodlynne Avenue. Williams observed McCloud talking to Xavier and approached them. As the three discussed automobile parts, several officers suddenly appeared and arrested them. Williams denied that he witnessed or participated in any drug transactions.
At the close of the evidence, the court charged the jury and sent them to deliberate. The jury deliberated for approximately three hours before requesting a readback of Investigators Kee and Moore's descriptions of the three suspects, and that of defendant Williams' entire examination. At the conclusion of the readbacks, the trial court asked the jury whether it wished to continue its deliberations or reconvene the following day. The jury decided to return the next day; however, Juror Number Two indicated to the court that he could not return. Outside the presence of the jury, the trial court explained to the parties:
[O]ne juror has indicated that, I don't know what the reason is but they cannot be here tomorrow, I don't know whether the excuse is a good one or a poor one or somewhere in between[,] but assuming the Court determines that it is a valid excuse for not being here, based on your positions as far as how we go about selecting an alternate, I'm going to make the determination because nobody can point me to any authority right at the moment that we will draw from the box among the two and whoever is drawn will be the replacement juror, okay?
Defendants' attorneys agreed to the substitution procedure.
The court then reconvened the jury and the following colloquy occurred between the trial court and Juror Number Two.
Court: Who has the problem? All right, sir. Would you indicate why you do not feel you could return tomorrow to continue deliberations.
Juror Number Two: Well, I need to make some money this week. I thought this was only going to go maybe one, two days, I need to get back on track.
Court: Well, I would suggest to you, sir, that probably applies to everyone on the jury.
Juror Number Two: I'm not getting paid for being here. I gave it my best shot. I stayed here for three days so far.
Court: So you're saying you would have a hardship if you had to ...