On certification to the Superior Court, Appellate Division.
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
The issue raised in this appeal is whether the trial court erred in not excusing a juror based on juror prejudice either before or after the jury had been sworn.
Tyler was indicted on drug charges that included third-degree possession of heroin with intent to distribute in a school zone. The Office of the Public Defender represented Tyler, and made several applications to adjourn scheduled trial dates. Trial was eventually scheduled to begin on July 18, 2000. On July 17, 2000, Tyler sought leave of court to change his counsel and to adjourn the trial to allow preparation by new counsel. When he made this application, Tyler was under the misconception that July 18 was to be a pretrial conference. The trial court denied the motion for an adjournment, but stated that Tyler could retain new counsel if that attorney appeared the next morning prepared to try the case. The new attorney informed the court that in that case, he could not represent Tyler.
During jury selection, one potential juror, A.C., indicated to the judge at sidebar that she might not be able to serve because she had accused her father of sexual assault and he had been prosecuted for that offense eight years earlier. On further questioning, A.C. stated that she wasn't sure how this would affect her as a juror but that she could "listen with an open mind." The judge determined that this did not warrant removal of A.C. for cause. Prior to the lunch recess, another juror, G.B., raised her hand indicating that she wanted to be heard, but the trial judge did not permit questions at that time.
Toward the end of the day, after the jury had been selected and sworn but before opening statements, A.C. and G.B. indicated that they would like to speak to the judge. Outside the presence of the jury, A.C. indicated that she was reluctant to serve because she had a job interview scheduled for the next day that she did not want to miss. The trial judge expressed frustration that A.C. had not informed the court of this in response to its earlier inquiries, and instructed A.C. that she should attempt to reschedule the interview. G.B. stated that she worked for a law office that was understaffed and she didn't think she could be absent for a second day. The judge stated to G.B. that the judge knew her employer and believed he would understand, and if he did not, he should contact the judge. G.B. then said she could not be unbiased because she dealt with crimes all day long. The judge stated that she didn't believe G.B., suggesting that G.B. was seeking to be removed so that she could return to work. The judge instructed G.B. to appear for jury service the following morning.
After A.C. and G.B. had left the courtroom, the trial judge informed counsel that although G.B. had been asked to return, she might be excused before the end of the case because of her expression of bias. Defense counsel stated that given G.B.'s comments, it would be inappropriate for G.B. to sit on the jury. The judge responded by promising that G.B. would not be a deliberating juror, but that the judge might keep her there for the next day as a sanction.
The next morning, before the jurors entered the courtroom, the judge explained that G.B. would sit and listen to the case as a sanction for her contemptuous conduct, and the judge would dismiss her at the end of the day without G.B. participating in deliberations. Defense counsel objected to either A.C. or G.B. sitting as jurors, and moved for a mistrial and a stay to permit an interlocutory appeal. As to A.C., the judge disagreed that A.C. would have difficulty serving, and refused defense counsel's request to question A.C. further.
The judge also rejected defense counsel's argument that G.B.'s continued presence on the jury had the potential of infecting the entire panel. The judge brought G.B. into the courtroom separately and informed her that she would sit with the jury for one day as a sanction and then be excused. The judge also instructed G.B. that she was not to have any conversation with another juror regarding the case or her service on the jury.
After the trial, the jury found Tyler guilty as charged. The judge sentenced him to an extended term of seven years with three years of parole ineligibility. The Appellate Division affirmed in an unpublished opinion, finding that Tyler had not shown any prejudice in G.B. sitting as a juror without deliberating. The Supreme Court granted Tyler's petition for certification.
HELD: The trial court should not have allowed G.B. to sit as a juror after she informed the court that she was not impartial, and the court's failure to remove G.B. deprived Tyler of a fair trial.
1. Those charged with a crime have the constitutional right to a fair trial before an impartial judge and an unprejudiced jury. The trial court has a duty to preserve the jury's impartiality throughout the trial. (pp. 15-16)
2. If a juror is excused after being sworn but before opening statements begin, another juror may be impanelled and sworn. R. 1:8-2(d)(1). There would have been no risk of prejudice if the judge had removed G.B. for cause after finding that G.B. expressed a bias. Contrary to the State's assertion, actual prejudice need not be shown as a precondition to successfully asserting impairment of the fundamental right of proper jury selection. When the integrity of the jury selection process has been compromised to the extent involved here, prejudice to a defendant will be presumed. (pp. 16-18)
3. The record is unclear whether the judge adjudicated G.B. for contempt under R. 1:10-1. Any finding of contempt must be vacated because the trial court should have recognized G.B. when she asked to be heard before the lunch recess. Further, the trial court made no attempt to ascertain why G.B. had not informed the court earlier concerning her prejudice and bias. Without that record, a finding of contempt is improper. (p. 18)
Judgment of the Appellate Division is REVERSED and the matter is REMANDED to the Law Division for a new trial.
CHIEF JUSTICE PORITZ and JUSTICES LONG, VERNIERO, LaVECCHIA, ZAZZALI, and ALBIN join in JUSTICE COLEMAN's opinion.
The opinion of the court was delivered by: Coleman, J.
The critical issue raised in this appeal is whether the trial court erred in not excusing a juror based on juror prejudice either before or after the jury had been sworn. The trial court found that although the juror was unfit to serve based on prejudice and bias, the juror should not be excused until she had served one day because the court believed the juror had tried to avoid jury duty in a two-day trial. The Appellate Division affirmed, finding that "[n]o prejudice to defendant has been shown." We reverse and hold that the trial court did not properly perform its gatekeeping role.
I. Defendant was indicted for third-degree possession of heroin, third-degree possession of heroin with intent to distribute and third-degree possession of heroin with intent to distribute within a school zone. The indictment was based on observations allegedly made by New Brunswick Police Officer Victor DeFilippo while on bicycle patrol on August 2, 1999. The case was assigned to a single judge for pretrial management and trial. The appeal focuses on the jury selection process and the events immediately preceding the jury voir dire that contributed to the atmosphere in which the jury selection process was conducted.
Defendant was represented by the Office of the Public Defender, which made several applications to adjourn scheduled trial dates. Trial was eventually scheduled to begin on July 18, 2000. On July 17, 2000, defendant sought leave of court to change his counsel and to adjourn the trial to allow time for preparation by new counsel. Defendant apparently had had substance abuse and psychiatric problems for a number of years and previously had appeared before the presiding judge. When defendant made the application for a change of attorney, he had been laboring under the misconception that July 18 was to be a pretrial conference and had failed to prepare for trial. Defense counsel informed the court that he was "categorically, . . . unprepared for trial." In denying the motion for an adjournment, the trial court stated: Well, Mr. Tyler, I'm afraid that if we waited until you're prepared, I would be retired. I note, Mr. Tyler, you've been before me on a number of occasions, and I note you stood there and you said I don't want to go to trial. I don't want to plead.
I don't want to go to trial and I don't want to plead. And I said, well, those are the only two alternatives, choices that you have. I couldn't think of another one. The prosecutor didn't want to dismiss the case.
So we finally back on February 28th set this matter down for trial. And then we had a trial date on May 22nd which you adjourned. So the trial memorandum was signed on February 28. This is now July 17th. Why aren't you ready?
THE DEFENDANT: I'm not ready, and also my, my attorney can't be ready either because he knows nothing about my trial.
THE COURT: That's not my problem, Mr. Tyler. That's your problem. . .
. . . . I don't care if Mr. Tyler wants to retain anybody as long as they're here tomorrow morning to pick a jury in this matter.
If this was not a defendant that I had a great deal of experience with, if this was not a defendant who sat here and hemmed and hawed, didn't want to go to trial, ...