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).
In this appeal, the Supreme Court must determine whether a supplemental charge to a jury reporting a deadlock that did not repeat certain admonitions that the jury not surrender their honest convictions merely to return a verdict, and that suggested that deliberations would continue until unanimity was achieved, constitutes reversible error.
Figueroa was indicted for murder, attempted murder, and various weapons offenses. The charges arose out of a confrontation outside of a bar between Figueroa, Jeffrey Colon (his co-defendant), Samir Pretlow, Phillip Austin, and Willie Davis. Pretlow was shot three times and died at the hospital. Austin was shot in the leg. At trial, the jury faced significant issues of credibility. Austin and Davis had given multiple conflicting statements to the police and to Figueroa's investigator, variously stating that they did not recall anything or could not identify the shooter; that shots were fired as part of an unrelated fight between two women; or that the men had a dispute, Colon gave Figueroa a gun, and Figueroa used it. The initial jury charge included instructions that the jury "not surrender your honest convictions as to the weight or effect of evidence solely because of the opinion of your fellow jurors or for the mere purpose of returning a verdict." The jury began deliberations at 2:45 p.m. on Tuesday, October 26, 2004. Around 2:25 p.m. the next day, the jury sent the court a note advising that "we cannot unanimously agree on the verdict." The court told that jury that "one day does not a deliberation make," and asked them to continue deliberations after providing a supplemental instruction that did not repeat the "not surrender your honest convictions" language. The judge also stated "I got to be here tomorrow. I got to be here Friday. I got nothing going on Saturday, and Giants are playing away on Sunday, so we will be here as long as it takes you to go through this process. I want you to continue, but I want you to do so keeping in mind what I said both now and earlier, the basic instructions that I gave you yesterday." Figueroa's counsel objected to the supplemental instruction, arguing it was "too forceful" and improperly failed to remind the jurors not to "surrender their honest convictions" merely to return a verdict. Figueroa's counsel also asked the court to explain to the jurors that they would not be held through the weekend if they failed to return a unanimous verdict. The court declined to provide further explanation.
About one hour later, the jury reported that it had reached a verdict on all charges. When the court polled the jury, they were unanimous in finding Figueroa not guilty of the murder of Pretlow but guilty of aggravated manslaughter, and not guilty of attempted murder or aggravated assault of Austin. One juror dissented from the purported guilty verdicts on the weapons charges. Thereafter, the trial court denied a motion for a mistrial, instructed the jury that a non-unanimous vote was not a legal verdict, and instructed the jury to continue deliberations on those charges. Twenty minutes later, the jury returned with a unanimous guilty verdict.
In an unpublished opinion, the Appellate Division reversed Figueroa's conviction and remanded for a new trial. The panel concluded that the trial court's comments in the supplemental charge relating to potential weekend deliberations "tainted the process" and were "impermissibly coercive."
The Supreme Court granted the State's petition for certification.
The opinion of the court was delivered by: Justice Hoens
In 1980, we announced guidelines to govern trial courts faced with the questions of whether and how to direct juries that had reported themselves to be deadlocked to continue their deliberations. State v. Czachor, 82 N.J. 392 (1980). In particular, we concluded that the charge then generally utilized was inherently coercive, and we directed trial courts to use instead an alternate form of the charge that would avoid pressuring dissenting jurors into surrendering their "honest convictions" about guilt or innocence merely to reach a unanimous verdict. Id. at 405 n.4. The concerns that supported that decision motivated us to direct that our model charges be revised to include a general charge that would advise jurors of their obligations to consult and deliberate with each other and would authorize them to re-examine and change their own views when appropriate, but which would also remind them not to reach an agreement that would do "violence to individual judgment." Ibid. At the same time, we approved the use of a portion of that modified charge in response to a jury's report of a deadlock. We left whether, in an individual trial, that charge could be given or repeated to the discretion of the trial court.
The question presented in this case is whether a supplemental charge to the jury reporting a deadlock that did not repeat those admonitions, and that suggested that deliberations would continue until unanimity was achieved, constitutes reversible error. Because we have concluded that the language used by the trial court, which was not tempered by any repetition of the language of the modified, supplemental charge, had the effect of coercing the dissenting juror or jurors into agreeing with the verdict announced shortly thereafter, we direct that defendant be afforded a new trial.
We begin our analysis with a recitation of the testimony and evidence presented during the trial.*fn1 Samir Pretlow and two of his friends, Phillip Austin and Willie Davis, went to a bar in Elizabeth one evening in February, 2003. At some point during that night or in the early morning hours of the next day, they encountered defendant Robert Figueroa and his friend, co-defendant Jeffrey Colon, at the bar. According to Davis, defendant and Pretlow bumped each other and then engaged in "a couple [of] stare-downs." Defendant asked Pretlow why he was "looking at [defendant] funny" and Pretlow offered to "go outside" about it. Defendant, Colon, Pretlow, Austin, and Davis all went outside and, as the group walked from the bar, defendant and Pretlow began a heated argument. Davis and Colon walked away from the other three, engaging in a conversation of their own. As they were returning to the group, Davis saw Colon walk to his nearby parked car, described as a gray Intrepid, and he heard defendant threaten to "body" one of the others to "show [them] it's not a game." Davis testified that he and the others understood this to be a threat by defendant to kill someone.
According to Davis, Colon then handed a gun to defendant who pressed it to Pretlow's head. In response, Pretlow began to struggle with defendant for control of the gun and punched defendant three times in the face while doing so. Colon attempted to break the two apart, while Davis and Austin urged Pretlow to leave because they were unarmed. After defendant and Pretlow were separated, defendant raised the gun, pointing it at Davis. As Davis ran up the street, he heard shots being fired.
Austin was hit once in the left leg and fell to the ground. Forensic evidence produced at trial demonstrated that Pretlow was hit three times in the leg and once in the chest. He died the next day at the hospital.
At the sound of the gunfire, Jose Banos, a resident of a nearby building, awoke. He thought that someone had thrown a rock at a car window, but his wife told him that she thought it was the sound of gunshots being fired. Banos looked out of his window and saw a tall thin man and a shorter man, noting that the thin one had a black object in his hand. He testified that he heard the sound that had awakened him again after he had finished looking out of the window.
Two Elizabeth police officers responded to a call of shots being fired. They left after dispersing a crowd that was watching an unrelated argument between two women, but returned a few minutes later when they were alerted by two other police officers that Pretlow and Austin had arrived at a nearby hospital with gunshot wounds. Near the scene they found a Cleveland Indians baseball cap, which they later learned matched the shirt Pretlow had been wearing. In addition, the officers noticed that there was a bullet hole and a shattered rear window in a parked Hyundai that they discovered belonged to Banos, and they found three spent shell casings near the car. They also found a wristwatch, a blue Polo headband and a fourth shell casing between the Hyundai and another parked car. Two "projectiles" were later found lodged inside of the Hyundai.*fn2
The two other police officers who had gone to the hospital were not able to interview Pretlow, because he was undergoing surgery from which he never regained consciousness. They attempted to interview Austin, who was not cooperative. He gave the officers five different false names before they learned his identity from a family member at the hospital. When Austin spoke with the officers, he first told them that the argument at the bar had been between two women and that he and Pretlow were hit by bullets when shots were fired as part of that fight. He told the officers that he was unable to identify the shooter, telling them that he did not know the shooter and thought that the people involved were from out of town. Austin was released from the hospital later that day.
The next day, Austin walked into the Elizabeth Police Station and told the desk officer that he had information about the Pretlow shooting. He then voluntarily gave Detective Ismael Olivero a statement about the incident. His statement was typed, reviewed by him, and signed. In it, he explained that there had been "a tussle" and that Colon had given defendant the gun that defendant then used to shoot him and Pretlow. Thereafter, Austin again changed his story, telling an investigator retained by defendant in a taped interview that he only knew that defendant and Pretlow had words in the bar and left together. Austin told the defense investigator that he had merely assumed defendant was the shooter when he heard the shots being fired. At trial, Austin testified that he could only recall "a little commotion" among "females" prior to being shot as he was running away. In addition to Austin's trial testimony, both the typed statement he gave to the police and the taped statement he gave to defendant's investigator were admitted into evidence.
Davis, who had also been with Pretlow at the bar, gave conflicting information to police and defense investigators as well. Davis first appeared, voluntarily, at police headquarters and told the police that he had information about the shooting.
In his statement, Davis identified defendant as the shooter and revealed that Davis had seen Colon retrieve the gun from his car and hand it to defendant. Prior to trial, however, Davis gave a written statement to an investigator for defendant. That consisted of a single, handwritten sentence in which he stated that he had not seen anything at all on the date of the shooting. At trial, after Davis had given testimony consistent with his first statement to the police, he disavowed the written statement he had given to the defense investigator. He explained that he signed that statement because he was approached on the street by defendant's investigator, without warning, outside of a family member's house in another city. Davis testified that he wrote the statement for defendant's investigator because he was afraid of defendant and of what he would do if he testified against defendant.
Both Austin and Davis were cross-examined on the inconsistencies between their testimony and their statements to the police and to defendant's investigator. In addition, each was confronted with his criminal convictions and examined on their membership, along with Pretlow, in a street gang. Defendant's investigator, David Foster, who had interviewed Davis and Austin, and to whom each had given his conflicting statement, also testified. As to Davis, Foster denied that he approached him without warning in the street and testified that Davis had reached out for him and volunteered his recantation. In addition, Foster testified that he spoke several times with Austin before taping his statement. According to Foster, Austin told him "he was feeling guilty that he said the wrong thing to the Prosecutor." Co-defendant Colon called Joseph Rolo, an auto body shop manager, to testify that Colon's car, the gray Intrepid, was in his shop for repairs from February 10 until February 24. Colon therefore contended that Davis's testimony to the effect that Colon had retrieved a gun from his car and had handed it to defendant could not be correct.
Defendant and co-defendant Colon were indicted for first-degree murder (of Pretlow), N.J.S.A. 2C:11-3a(1), (2), N.J.S.A. 2C:2-6; first-degree attempted murder (of Austin), N.J.S.A. 2C:11-3a, 2C:5-1; second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a; and third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5c. In a separate indictment, they were also charged with second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7b. Defendant and Colon were tried together in a trial that commenced on October 19, 2004, and included three full days of testimony.
The jury began deliberations at 2:45 p.m. on Tuesday, October 26, 2004. The initial jury charge, consistent with our Model Charge, see Model Jury Charges (Criminal), Final Charge (1994), included the following instructions:
Now, this verdict must represent the considered judgment of each of you, and must be unanimous. It is your duty, as jurors, to consult with one another with a view towards reaching an agreement, if you can do so without any violence to your own individual judgment. Each of you must decide the case for yourselves, but do so only after an impartial consideration of the evidence with your fellow jurors. In the course of your deliberations do not hesitate to re-examine your own views and/or change your opinions, if you are convinced they are erroneous, but do not surrender your honest convictions as to the weight or effect of evidence solely because of the opinion of your fellow jurors or for the mere purpose of returning a verdict. [(emphasis added).]
It is not entirely clear from the record, but it appears that the jury ended its deliberations that day by 4:20 p.m. and returned to the courthouse to continue the next morning at approximately 9:00 a.m. It also appears that the jury was released for lunch from noon until 1:30 p.m., after which they again began to deliberate.
The same day, shortly before 2:25 p.m., the jury sent the court a note advising that "we cannot unanimously agree on the verdict." The trial court did not ask the jury whether further deliberations would result in a verdict. Instead, the court gave the jury the following supplemental instruction:
I want to tell you, right now, that one day does not a deliberation make. Sometimes it takes time to go through the process.
And in response to your note I just want to speak with you for a minute or two. I want to speak about the jury deliberation process to be sure that you fully understand just what is contemplated.
It is a process in which you are asked to do two things. You are asked to listen to what is being said by the other jurors with a view towards accepting what you hear, and at the same time you are asked, when it's your turn to speak, to speak with a view towards persuading the others to what you are saying, and it works when jurors are able to do both. It's not that difficult to do when you realize what it is a rational deliberative process and it's a process of which you are requested, as you listen to what the others are saying, to receive that with an open mind, in other words, in a receptive frame of mind to be persuaded to what you are hearing. Then, as I say, when you speak you are also to speak with a view towards persuading the others to what you are saying.
Now, that, obviously, is an ongoing process, but functions when the jurors are only able to do both and you do that in a building block fashion, a building block fashion, if you will, where you start out with some rather basic simple facts and begin to move on from there to other facts and you talk about the evidence and then address, are we satisfied with this, that, or the other thing has been established and exists, and what you are doing is building a foundation, if you will, a factual foundation, and then when you've done that you begin to then address, what does that mean? What does this tell us? What may we properly and reasonably infer from what we've concluded are the basic facts and what is a strong rational inference or is it not? Are we persuaded we should draw that inference and only when you've gone through that, still just dealing with the facts and drawing inferences from those facts do you get, then, to the elements of the offense and ask yourselves, now, has the State established this element beyond a reasonable doubt, but all throughout that process it is both a speaking and listening deliberation and each juror is expected to ...