On appeal from Superior Court of New Jersey, Law Division, Criminal Part, Somerset County, Indictment No. 02-01-00073.
Before Judges Skillman,*fn1 Coburn and Fisher.
The opinion of the court was delivered by: Fisher, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
A deliberating juror, unsettled by her emotional feelings toward the defendant's predicament, was removed from the jury by the trial judge and replaced by an alternate. Defendant was convicted twenty-three minutes later. Because the juror's empathy for the defendant was not a circumstance which rendered the juror either ill or otherwise unable to continue deliberating, the trial judge was not permitted to remove her from the jury. As a result, the judgment of conviction will be reversed.
Defendant was charged with robbery in the first degree, in violation of N.J.S.A. 2C:15-1, possession of a weapon for an unlawful purpose, in violation of N.J.S.A. 2C:39-4d, and conspiracy, in violation of N.J.S.A. 2C:5-2. He was convicted on all three counts and sentenced to twelve years imprisonment subject, also, to the No Early Release Act. The mandatory fines, assessments and penalties were also imposed.
Defendant has raised two issues for our consideration:
I. SINCE THE JUROR EXCUSED DURING DELIBERATIONS WAS NEITHER ILL NOR UNABLE TO CONTINUE UNDER R. 1:8-2(d), AND THE JURORS HAD ALREADY REACHED AN ADVANCED STAGE OF DELIBERATIONS, HER 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. V, VI, XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10.
II. BECAUSE THE MITIGATING FACTORS FAR OUTWEIGHED THE AGGRAVATING FACTORS IN THIS CASE, AND BECAUSE A DOWNGRADED SENTENCE WOULD HAVE BEEN IN THE INTEREST OF JUSTICE, THE TRIAL JUDGE ERRED IN REFUSING TO SENTENCE DEFENDANT AS A SECOND-DEGREE OFFENDER.
Because we conclude that the removal of a juror during deliberations was erroneous, the judgment of conviction will be reversed. As a result, we need not reach the second point urged by defendant.
After three days of trial, the jury heard the summations of counsel and the trial judge's instructions, which included an admonishment against permitting passion or prejudice to enter into their deliberations:
As jurors, you are to weigh the evidence calmly and without any passion, prejudice, bias, favor, or sympathy of any kind to either side. As you know, any influences that may be caused by those emotional responses to the case deprive both the State and the defense of what you promised in the beginning; that is, a fair and impartial decision based on the evidence.
At 11:38 a.m. the jury began its deliberations. A recess for lunch was taken from 12:30 p.m. to 1:30 p.m. Soon after resuming deliberations, the jury forwarded a note to the trial judge indicating that one juror"has the emotions to affect judgment."
The trial judge called for the juror to come out of the deliberating room to ascertain the nature of the problem:
THE COURT: Come on over. We had a note that there was some problem. I didn't know what it was.
THE JUROR: I thought I could make this decision without emotion, but I can't.
THE COURT: You don't feel you can make a decision here?
THE JUROR: I can't agree with what they want. I can't do it.
THE COURT: You are not required to agree with what they want. Nobody is, you know, forcing you to agree with what they want. Everybody wants you to vote your own decision in the case. Is there some other problem?
THE COURT: You are confused?
THE JUROR: So we have to have a unanimous decision, but --
THE COURT: It's a criminal case, and in civil cases they have majority vote. In criminal cases it has to be a unanimous decision.
THE JUROR: It's a very emotional thing for me. I am a black woman. I have children [defendant's] age. I -- I just can't make a decision to put him in jail. I can't do that. I can't do that. Sorry.....
THE COURT: Well, you understand what the jury charge was; that you decide the case based on the facts and you apply the law to the facts. Now, is it just that you feel that you have kids his age and it's difficult for you to make the decision on the facts, or what is it?
THE JUROR: I can't separate all the other options from the facts. You know, he's a young kid. He did something really stupid, I understand that. Yes, he did something wrong, I understand that. But there doesn't seem to be any room in what we've been asked to do to give the kid a break. I just, you know -- I see another black man going to jail for something really stupid when there is some really serious crimes out there. They are just walking around lolligagging, you're free, you know, doing whatever. Like I said, it's a very emotional thing. I just --
THE COURT: Well, certainly none of us could advise you how to vote. You have to vote how you choose to vote. Nobody here is telling you to vote one way or the other.
THE JUROR: So what are you telling me?
THE COURT: Well, what I'm telling you is that when we gave you -- when we talked to you about jury selection, we indicated ...