On certification to the Superior Court, Appellate Division.
The issue in this appeal is whether the trial court abused its discretion when it determined that a juror's final "guilty" answer to the poll indicated clear concurrence with the verdict.
On February 1, 1999, Defendant, Deshand Milton, was arrested in the City of Camden and ultimately charged with possession of a controlled dangerous substance (Count One); possession with intent to distribute (Count Two); and possession with intent to distribute within 500 feet of the property of a public housing facility (Count Three). Subsequently, the matter was tried before a jury. Following its deliberations, the jury returned to the courtroom and the foreperson announced that the jury had reached a unanimous guilty verdict on all three counts. After defense counsel asked that the jury be polled, the court clerk called each juror by seat number, asking each to state his or her verdict by indicating whether guilty or not guilty.
The poll on Count One was uneventful, with each juror clearly stating "guilty." When polled on Count Two, Juror No. 8 remained silent for approximately fifteen seconds before asking the clerk, "Do you want me to tell [the truth]. In response, an exchange ensued between Juror No. 8 and the court, during which the court told the juror that it wanted to know how the juror voted. After another ten seconds passed, the court told the juror that the foreperson had indicated that the jury had been unanimous in its verdict and that the purpose of the polling was "to confirm that the verdict was unanimous." The court then asked whether the juror's verdict was guilty or not guilty. Again, Juror No. 8 was silent for approximately twenty seconds, after which the court told her that she had to respond. In response, the juror said, "um, guilty. That was the verdict I gave." When polled on Count Three, all of the jurors, including Juror No. 8, concurred with the guilty verdict announced by the foreperson. Accordingly, the court found that the poll established that the jury was unanimous on all three counts.
At the close of the court's final remarks to the jury, defense counsel approached the bench and expressed concern with Juror No. 8's response, indicating that he thought he had heard the juror whisper "not guilty" after she asked the court if it wanted the truth. Defense counsel asked the court to conduct an in camera hearing with the juror.
Because the court had not heard that alleged inconsistent response and was satisfied by the juror's final answer, the court denied the request and excused the jury.
Thereafter, defense counsel filed a motion for a new trial alleging, among other claims, that the verdicts on Counts Two and Three may not have been the product of a unanimous jury. In the alternative, defendant asked the court to recall Juror No. 8 for an interview. Two months after trial, the court held a hearing on defendant's motion, during which defendant called three witnesses who had been present in the courtroom during the polling of Juror No. 8. All three defense witnesses indicated that they either had heard Juror No. 8 whisper or mouth the words "not guilty" in response to the clerk's questioning. But they also indicated that they clearly heard Juror No. 8 ultimately respond "guilty" in response to direct questioning by the court. The assistant prosecutor who tried the case also testified at the hearing. Except for the judge, she was seated closest to Juror No. 8 during the exchange. She testified that although she recalled hesitation on the juror's part, she did not hear Juror No. 8 say "not guilty." Rather, she believed that she heard Juror No. 8 say that "[she] voted guilty" in response to the judge's specific question.
Based on the testimony, defense counsel argued that Juror No. 8 should have been questioned further to determine whether she agreed with the guilty verdict announced by the foreperson, in light of her past-tense response to the specific question of how she voted. Because doubt remained about the meaning of Juror No. 8's final answer, defense counsel requested a new trial or in the alternative, an interview with the juror. Defense counsel also argued that Juror No. 8's verdict on Count Two also placed the unanimity of the verdict on Count Three in doubt.
In an oral opinion, the trial court denied defendant's motion, acknowledging that the juror did hesitate before responding. However, the trial judge noted that he had never heard the juror say the words "not guilty" and further that the juror eventually gave a clear answer of "guilty." In light of that answer, the court explained that it was not its responsibility to "go on a hunting expedition to make inquiries into something that may not exist." In the sentencing stage, the court merged Counts One and Two into Count Three, sentencing defendant on Count Three only. Consistent with the State's request, the court applied the persistent-offender statute and imposed an extended term of twenty years, with eight years of parole ineligibility.
On appeal, the Appellate Division rejected defendant's challenges to his conviction and sentence. The panel held that the trial court did not abuse its discretion when it denied defendant's motion for a new trial and request to interview Juror No. 8. In reaching that decision, the court relied on State v. Schmelz, 17 N.J. 227 (1955), in which the Supreme Court observed that "if it clearly appears that the juror concurs in the verdict any evasive statement or explanation volunteered by the [the juror] is to be disregarded." Citing that dictum, the appellate court concluded that the fact that Juror No. 8 may have mouthed the words, "not guilty," did not detract from her ultimate, unequivocal agreement with the verdict announced by the foreperson.
The Supreme Court granted defendant's petition for certification.
HELD: In this appeal of a criminal conviction in which a juror initially expressed hesitation about her concurrence with the guilty verdict, the trial court abused its discretion when it determined that the juror's final "guilty" answer to the poll indicated clear concurrence with the verdict.
1. The right to a unanimous verdict is firmly rooted in our rules of procedure and decisional law as an essential component of an accused's right to a jury trial. (pp. 11-12)
2. To ensure that no uncertainty remains about the verdict and its unanimity, our court rules afford all parties the right to poll the jury after the foreperson has announced the verdict. The very purpose of polling is to afford an opportunity for free expression, unhampered by the fears or the errors that may have attended the private proceedings. (pp. 12-14)
3. Although the trial court has broad discretion in determining whether a juror's response reflects agreement with the verdict, it has the duty to eliminate all doubt about the unanimity of the verdict to effectuate the poll's essential purpose of ferreting out coerced decisions. (pp. 14-15)
4. An unorthodox response regarding assent to a verdict is sufficient only if the answer is given "in such a manner as to leave no doubt as to the nature and intention of the response." (pp. 15-16)
5. A trial court first must clarify the nature and intention of a juror's otherwise equivocal or ambiguous response before disregarding prior statements that may bear on the meaning of the juror's final answer. However, when confronted with an unorthodox reply that that suggests a lack of unanimity, efforts to elicit clarification about the intended meaning of that response must not delve into the mental processes that the juror has undertaken in reaching his or her ultimate verdict. (pp. 16-22)
6. Although there is authority supporting the Appellate Division's reasoning that a final expression of concurrence cures any doubt created by an initial ambiguous response, the important policies undergirding the right to poll are better served by acknowledging that in some circumstances a final statement of assent will not remedy doubt created by an initial ambiguous response. (pp. 20-22)
7. A bright-line rule for determining whether a juror has concurred fully with a verdict is neither reasonable nor desirable. However, because the primary purpose of the poll is to reveal coerced decisions, a trial court faced with an uncertain or hesitant juror must elicit a clear response by using measures that afford the juror an opportunity to express freely his or her present state of mind about the verdict. (p. 22)
8. This matter falls within the limited class of cases in which a juror's final concurrence with the verdict does not eradicate the uncertainty created by her initial hesitation. The circumstances surrounding the juror's responses strongly suggest that she entertained doubt about the verdict announced by the foreperson. (pp. 23-25)
9. The court's description of the purpose of the poll as an attempt to "confirm" that the verdict "was" unanimous implied that the poll serves as a rubber stamp of the announced verdict. This error was then amplified by asking the juror about her verdict in the past tense and by failing to explain that the poll was intended to determine whether each juror still assents to the verdict. (pp. 25-26)
10. The poll on Count Two failed to provide the certainty that is the touchstone of a valid poll. When, as here, a poll leaves room for conjecture about the nature and intention of a juror's response, it cannot be said that the verdict is unanimous. (pp. 26-27)
11. The trial court abused its discretion in accepting Juror No. 8's statement - "Um guilty. That was the verdict I gave." - as conclusive evidence of her concurrence with the verdict. Because the fundamental nature of the right to a unanimous verdict requires any doubt about the unanimity of the verdict to be resolved in defendant's favor, the conviction on Count Two must be reversed. (pp. 27-28)
12. Since the only element distinguishing Counts Two and Three is the location of the defendant, Juror No. 8 must also have had reservations that defendant intended to distribute the drugs within 500 feet of a public-housing facility. Having been viewed as agreeing to the verdict on Count Two, she may have resigned herself to concurring with the verdict on Count Three. In view of the overlap between Count Two and Count Three, the flawed verdict on Count Two precludes the Court from having sufficient confidence in the unanimity of the verdict on Count Three. Thus, the defendant's conviction on that count also must be reversed. (pp. 28-29)
The judgment of the Appellate Division is REVERSED and the matter is REMANDED for a new trial on Counts Two and Three.
JUSTICE WALLACE has filed a separate dissenting opinion, in which both CHIEF JUSTICE PORITZ and JUSTICE VERNIERO have joined. Justice Wallace did not believe that the trial judge abused his discretion in the manner in which he polled the jury. Rather, he believed that the trial judge fairly sought to clarify the juror's response to determine whether she agreed with the verdict in a patient and non-intimidating manner. Finally, while recognizing that it would have been preferable for the trial judge to have asked the juror whether the verdict she reached in the jury room was also her present verdict, Justice Wallace considered that failure as harmless, in light of the juror's subsequent and clear ultimate response of "guilty." Thus, Justice Wallace would have affirmed the judgment of the Appellate Division.
JUSTICES LONG, LaVECCHIA, and ALBIN join in JUSTICE ZAZZALI's opinion. JUSTICE WALLACE has filed a separate dissenting opinion in which CHIEF JUSTICE PORITZ and JUSTICE VERNIERO have joined.
The opinion of the court was delivered by: Justice Zazzali
A jury found defendant, Deshand Milton, guilty of three drug-related offenses. When polled on the second of the three counts, one juror hesitated before responding, "Um guilty. That was the verdict that I gave." Despite evidence that the juror initially may have said "not guilty," the trial court accepted the verdict on Count Two as unanimous and denied defendant's motion for a new trial. The Appellate Division affirmed.
The question presented is whether the trial court abused its discretion when it determined that the juror's final "guilty" answer to the poll on Count Two indicated clear concurrence with the verdict. We find that the circumstances surrounding that expression of agreement raise significant doubt about the juror's true intentions with respect to the verdict on Count Two. Accordingly, we hold that the trial court erred in accepting the juror's ambiguous response without further questioning. Because the jury poll did not adequately safeguard defendant's right to a unanimous verdict, we conclude that the guilty verdict on Count Two cannot stand. In view of the substantial similarities between the offenses charged in Counts Two and Three, our disposition on Count Two also requires us to vacate the guilty verdict on Count Three. Thus, we reverse the judgment of the Appellate Division and remand for a new trial on Counts Two and Three.
We summarize the facts surrounding defendant's alleged criminal conduct to place the question at issue in context. Because defendant did not testify or call any witnesses on his behalf, we gather the relevant facts from the testimony of the State's witnesses.
On the evening of February 1, 1999, Camden City Police Sergeant William J. Murray conducted a surveillance investigation of small-quantity drug transactions in an area of Camden known for drug trafficking. Murray was positioned near a public-housing apartment building when he observed several men, including defendant, standing together approximately twenty-five yards from the sergeant's location. Although it was dark, glow from street lamps and nearby apartment buildings provided some light.
Murray testified that he observed an unknown man approach defendant's group and give defendant what, in Murray's opinion, were folded bills of U.S. currency. Defendant then reached into his pocket and pulled out an item or items, which he handed to the stranger. Having completed the exchange, the stranger left the area. Although Murray did not see the precise items that defendant took out of his pocket, Murray testified that as a result of his training and experience, he believed that defendant's conduct was consistent with a street-level narcotics transaction. Murray contacted his back-up unit and requested assistance with an arrest. Leaving his surveillance location, Murray approached defendant and identified himself as a police officer. Defendant ran from the area, but Murray and his back-up unit quickly apprehended defendant and placed him under arrest.
A search of defendant's pants pocket revealed $25.00 in cash and five small, orange, heat-sealed plastic bags, each containing cocaine. A senior investigator with the narcotics unit of the Camden County Prosecutor's Office, who is an expert in the field of street-level drug distribution, testified that the bags discovered on defendant's person would sell for between five and ten dollars each and were packaged in a manner consistent with street-level drug distribution.
With those facts as background, we turn to the focus of defendant's allegations of error, namely, irregularities in the poll of the jury. After its deliberations, the jury returned to the courtroom and the foreperson announced that the jury had reached a unanimous verdict. According to the foreperson, the jury found defendant guilty of possession of a controlled dangerous substance (Count One), N.J.S.A. 2C:35-10a(1); possession of a controlled dangerous substance with the intent to distribute the same (Count Two), N.J.S.A. 2C:35-5a(1) and 5b(3); and distribution, or intent to distribute, a controlled dangerous substance within 500 feet of the property of a public housing facility (Count Three), N.J.S.A. 2C:35-7.1a.
Defense counsel then indicated that he wanted to have the jury polled. The court instructed the jury that the court clerk would call each juror by seat-number and ask each juror to state his or her verdict by indicating either guilty or not guilty. The poll on Count One was uneventful, with each juror clearly stating "guilty." However, it is the poll on Count Two that generated the problems central to this appeal. Although neither the transcript nor the videotape of the poll provides a complete picture of what occurred in the courtroom, together they reveal the following facts.
When polled on Count Two, Juror No. 8 remained silent for approximately fifteen seconds before asking the clerk, "Do you want me to tell [the truth?]" Thereafter, the following exchange ensued between Juror No. 8 and the court:
COURT: Ma'am, absolute -- I want to know what your verdict is on Count -- ...