On certification to the Superior Court, Appellate Division, whose opinion is reported at 365 N.J. Super. 18 (2003).
(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).
This appeal involves a challenge to the trial court's replacement of a juror with an alternate juror during deliberations.
Leardee D. Jenkins was charged as a juvenile with offenses related to the robbery of a Foot Locker shoe store in Franklin Township, Somerset County. After a waiver hearing in the Family Part, jurisdiction was transferred to the Law Division. A grand jury indicted Jenkins for first-degree robbery, third-degree possession of a weapon (knife) for an unlawful purpose, and second-degree conspiracy to commit robbery. After a three-day trial, the jury convicted Jenkins on all charges. The trial court sentenced Jenkins to a twelve-year State Prison sentence subject to the No Early Release Act, making Jenkins ineligible for parole until he served 85% of his sentence.
The facts relevant to this appeal concern the discharge of juror number nine. The jury began deliberating at 11:38 p.m. and recessed for lunch from 12:30 p.m. to 1:30 p.m. Shortly after lunch, the jury foreperson sent a note to the court stating that one juror "has the emotions to affect judgment. Must speak to the judge at side bar." The court then asked to meet with the juror.
Juror number nine was brought into the courtroom, and she and the court engaged in a lengthy colloquy. The juror explained that Jenkins reminded her of her own children, and as a "black woman," she could not convict Jenkins and send another "young black man" to jail "for something really stupid." The trial court found that in light of juror number nine's severe emotional response, she could not decide the case based on the facts or evidence and was unable to follow the court's instructions. The trial court removed the juror from the panel and selected an alternate juror to replace her. The court then charged the jurors that they should set aside and disregard all past deliberations and begin their deliberations anew, just as if they were entering the deliberating room for the first time. Twenty-three minutes later, the newly constituted jury returned a guilty verdict on all three counts.
The Appellate Division reversed the conviction and held that the juror's apparent inability to overcome her sympathy and bias was not a valid basis for her removal. The Appellate Division concluded that in such circumstances, juror substitution was not a permissible option, and that the trial court had to choose between declaring a mistrial and allowing continued deliberations.
The Supreme Court granted the State's petition for certification.
HELD A trial court must remove a deliberating juror who unequivocally expresses an unwillingness or inability to put aside bias and follow the law. In this case, however, jury deliberations had advanced too far to permit substitution with an alternate juror, and a mistrial should have been declared.
1. A deliberating juror in a criminal trial may be replaced with an alternate only in specifically defined circumstances. Rule 1:8-2(d)(1). A deliberating juror may not be discharged and replaced unless the record adequately establishes that the juror suffers from an inability to function that is personal and unrelated to the juror's interaction with the other jury members. In this case, nothing in the record suggests that juror number nine was discharged because of her interaction with other jurors. The lengthy colloquy makes it abundantly clear that juror number nine decided that she was unable to follow the law. A juror who announces that she cannot obey her oath, follow the law, and render fair and impartial justice cannot remain on the jury. In such a case, the court must remove the juror and determine whether the circumstances permit substitution with an alternate. (pp. 13-23) 2. The next question is whether it was appropriate to reconstitute the jury with an alternate juror. Juror bias that is injected into the jury room is not resolved simply by dismissing and replacing the juror who introduced the bias. Before a court reconstitutes a jury based on the discharge of a deliberating juror who admits to a disabling bias, the court must satisfy itself that the deliberative process has not been poisoned. Here, the trial court did not determine whether the discharged juror injected racial considerations into the jury's deliberations. Jenkins contends that the jurors might have reacted negatively to any argument premised on race. The Court need not decide whether any remarks by juror number nine somehow backfired to the detriment of Jenkins because it concludes that the jury deliberations had advanced to the point that substitution with an alternate was not an acceptable option. (pp. 23-25)
3. The Court has recognized that, despite the benefits of judicial economy allowed by the substitution procedure of Rule 1:8-2(d)(1), there are times when jury deliberations have proceeded too far to permit replacement of a deliberating juror with an alternate. Where the deliberative process has progressed for such a length of time or to such a degree that it is strongly inferable that the jury has made actual fact-findings or reached determinations of guilt or innocence, there is a concern that the reconstituted jury is unlikely to really begin deliberations anew. In this case, the trial court's colloquy with juror number nine strongly suggests that the other jurors had reached a decision and were prepared to convict Jenkins at the moment of substitution. In such circumstances, it is unlikely that the new juror would have an opportunity to participate in an open-minded dialogue without a preordained result. That the newly reconstituted jury returned a verdict in twenty-three minutes lends credence to the argument that minds were closed when the alternate joined the deliberations. In this posture, judicial economy had to bow to Jenkins's fair trial rights and a mistrial should have been declared. (pp. 25-28)
4. The Court offers the following observations regarding the colloquy between the court and juror number nine. The trial court was presented with a difficult situation and assiduously tried to examine a juror in emotional turmoil to determine whether she could continue to serve. During the court's inquiry, juror number nine revealed the positions held by her fellow jurors as well as her own on the issue of Jenkins's guilt. The Court cannot overemphasize the importance of maintaining the secrecy of jury deliberations for the purpose of encouraging free and vigorous discourse in the jury room. Judges must caution a juror at the outset of the colloquy that she must not reveal the way in which any juror plans to vote or the vote tally on a verdict. That safeguard minimizes the risk that the judge will obtain information that will give rise to a claim of impropriety. (pp. 28-30)
5. Finally, Jenkins argues that the trial court inadequately instructed the newly reconstituted jury before it began deliberations anew. The trial court followed the Model Criminal Charge in this regard, instructing the jurors to set aside and disregard the past deliberations and begin deliberations anew, just as if the jurors were now entering the jury room for the first time. The Court finds that it was not error to instruct the jury consistent with the Model Criminal Charge. That does not mean, however, that the model charge cannot be improved. The Model Civil Charge addressing the same subject uses different language that more clearly expresses why it is important to begin deliberations anew. In addition, the Court notes that the Supreme Judicial Court of Massachusetts requires a judge to give instructions that the reason for the discharge is personal and has nothing to do with the discharged juror's views on the case or her relationship with fellow jurors. The Court recommends that the Committee on Model Criminal Charges review the language of the Model Civil Charge and the relevant portion of the Massachusetts charge to determine if the current Model Criminal Charge should be amended. (pp. 30-32)
The Appellate Division's judgment reversing the convictions is AFFIRMED, and the matter is REMANDED for a new trial.
CHIEF JUSTICE PORITZ and JUSTICES LONG, LaVECCHIA, ZAZZALI, WALLACE and RIVERA-SOTO join in JUSTICE ALBIN's opinion.
The opinion of the court was delivered by: Justice Albin
Argued September 28, 2004
In this case, a distraught juror advised the trial court during a break in deliberations that she could not follow the court's instructions on the law and render a verdict based on the evidence free of "passion, prejudice, bias, or sympathy." The juror explained that she was a "black woman," that defendant reminded her of her own children, and that she could not "see another young black man going to jail for something really stupid." For those reasons, she stated that she could not convict defendant under any circumstances. After a lengthy colloquy with the juror, the court declared that she was unable to continue pursuant to R. 1:8-2(d)(1), and replaced her with an alternate juror. Twenty-three minutes later, the reconstituted jury found defendant guilty of the crimes charged. The Appellate Division reversed defendant's convictions on the ground that, absent physical illness, the juror's emotional inability to follow the court's instructions did not constitute a valid basis for discharge. We disagree. The juror's admission that her emotional state rendered her unable to abide by her oath and to follow the law was a sufficient basis for her removal from the jury under R. 1:8-2(d)(1). We hold, however, that replacing the discharged juror with an alternate was not a permissible option because the jury's deliberations had proceeded so far towards completion that a reconstituted jury would not have been capable of considering defendant's guilt or innocence anew, as required by our case law. We, therefore, affirm the reversal of defendant's convictions and order a new trial.
At trial, the State presented evidence that on the evening of November 27, 2001, seventeen-year-old defendant Leardee Jenkins and his friend Michael Tatum, armed with kitchen knives and wearing multiple layers of clothing and masks made out of "wave caps," entered a Foot Locker shoe store in Franklin Township, Somerset County. Tatum approached the shift manager, threatened her with a butcher's knife, and demanded money from the cash register. Defendant simultaneously held a smaller, serrated knife to the stomach of another employee. While fumbling with the cash register key and backing up to avoid the point of Tatum's knife, the shift manager knocked over a store display. Customers, alerted to the robbery, took advantage of the commotion to dash from the store. Apparently unnerved by those events, defendant and Tatum also fled. A store employee called the police, who responded to the scene immediately.
Several blocks from the Foot Locker store, the suspicions of two Franklin Township police officers were aroused by defendant who was walking briskly without a jacket on that cold November evening. The officers stopped defendant, who told them that a man with a knife had been chasing him. The officers decided to place defendant in the back of their patrol car while they investigated. Later, when defendant was removed from the patrol car, an officer found a black wave cap in the car. A Foot Locker employee identified the wave cap as the one worn by one of the robbers.
Not far from the Foot Locker store, a police officer detained Tatum, who was wearing a black wave cap but no coat. Sometime afterwards, in two separate locations, the police found the clothing and weapons defendant and Tatum had discarded. The Foot Locker shift manager identified a nine-inch knife with a black wooden handle as the weapon wielded by Tatum.
At Franklin Township police headquarters, in the presence of his mother, defendant confessed that he had planned to rob the Foot Locker store with Tatum, but claimed that Tatum was the moving force behind the scheme. Defendant explained that in addition to arming themselves with knives, they disguised their identities by wearing wave caps, extra layers of clothing, and white socks over their hands. After the aborted robbery, they disposed of that clothing. Defendant minimized his involvement, denying that he threatened the store employee with a knife and stating that he ran from the store thirty to thirty-five seconds after entering it.
At trial, defendant presented a renunciation defense. He testified that Tatum came to his house with the plan and the gear to commit the robbery and that he agreed to serve as a lookout because he "[n]eeded money." Defendant claimed that after entering the store and observing Tatum approach the employee with a knife he got cold feet and fled.
Defendant was charged as a juvenile with offenses related to the robbery of the Foot Locker store. After a waiver hearing in the Family Part, jurisdiction was transferred to the Law Division. A Somerset County grand jury indicted defendant for first-degree robbery (N.J.S.A. 2C:15-1), third-degree possession of a weapon for an unlawful purpose (N.J.S.A. 2C:39-4d), and second-degree conspiracy to commit robbery (N.J.S.A. 2C:5-2).
After a three-day trial, the jury convicted defendant on all charges. The trial court merged the weapons possession and conspiracy charges into the robbery conviction and imposed a twelve-year State Prison sentence subject to the No Early Release Act, making defendant ineligible for parole until he served 85% of his sentence.
The facts relevant to this appeal concern the discharge of juror number nine. During the jury selection process, in response to questions from the court, the prospective jurors agreed to apply the court's instructions on the law "without reference to [their] own feelings about the law." Each prospective juror agreed to render a verdict "in accordance with the evidence" and "without any passion, prejudice, bias, favor, sympathy of any kind to either side." After the jury was selected and sworn, the jurors were reminded of their duty to abide by the court's instructions on the law and to consider the evidence without resort to "passion, prejudice, bias, favor or sympathy." That admonition was repeated yet again after summations, at which time the court asked the jurors to keep the promise they had made at the trial's beginning to render "a fair and impartial decision based on the evidence."
The jury began deliberating at 11:38 a.m. and recessed for lunch from 12:30 p.m. to 1:30 p.m. Shortly after lunch, the jury foreperson sent a note to the court stating that one juror "has the emotions to affect judgment. Must speak to the judge at side bar." The court then asked to meet with that juror. Juror number nine was brought into the courtroom, and the court engaged in a lengthy colloquy:
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: Actually -- you have a tissue there, Sue?
(Pause in proceedings for juror to collect herself.)
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 young black man going to jail for something really stupid when there is some really serious crimes out there. They are just ...