On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 03-01-0108.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lefelt, Parrillo and Sapp-Peterson.
Defendant Brian Jenkins appeals from his conviction of purposeful or knowing murder, N.J.S.A. 2C:11-3(a)(1) or (2) (Count I); felony murder, N.J.S.A. 2C:11-3(a)(3) (Count II); armed robbery, N.J.S.A. 2C:15-1(a)(1) (Count III); and possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (Count IV). In addition to arguing that the court erred in failing to charge the jury on theft as a lesser included offense of robbery and that the sentence imposed was excessive, defendant also claims the trial court, over his objection, granted the State's application to replace Juror Eleven with an alternate juror rather than retaining Juror Eleven or declaring a mistrial. We agree that the trial court committed plain error in the manner it chose to replace Juror Eleven with an alternate and, consequently, we reverse defendant's conviction. We also agree that based upon the evidence presented, defendant was entitled to a jury instruction on theft as a lesser included offense of armed robbery. In light of our decision, defendant's remaining argument is moot.
It is not necessary to set forth the facts of defendant's crimes at great length. Mary Hinson was a fifty-nine-year-old woman who lived alone on the ground floor of a co-op. On October 31, 2002, a co-worker and superior found Hinson dead on her kitchen floor after they became concerned when she did not arrive at her job at Fort Dix nor call or answer her phone. Police found no signs of forced entry. Defendant lived on the second floor of the same building. He knew Hinson and, early in the investigation, denied hearing or seeing anything unusual. He reported that he last saw Hinson a few days earlier when she gave him $10. Police found a thank-you note from defendant to Hinson in her apartment. During the continuing investigation of Hinson's death, police obtained information from witnesses that implicated defendant. Defendant eventually gave police a statement in which he admitted stabbing Hinson.
At trial, defendant testified that on October 30, 2002, he stopped by Hinson's apartment to talk to her about his mother, who was hospitalized for surgery that same day. After talking to Hinson, he was just about to leave when Hinson told him she wanted to give him something, so he sat back down on the sofa. He then followed her into the kitchen and, for reasons unknown to him, Hinson told him to get out. She started pushing him repeatedly and a tussle ensued. Defendant testified that he grabbed a knife, slashed out at Hinson, and believed that he may have stabbed her in the neck at that point. He saw some blood and thought she was cut. The knife fell to the floor, as did he and Hinson, where the struggle continued. Defendant eventually wrested the knife from Hinson, who had grabbed it again, and stabbed her in the chest. Before leaving the apartment, he washed the blood off his hands. On his way out of the apartment, he took Hinson's purse because he believed her keys were there and he wanted to take the car to get as far away as possible. He did not, however, take it. Instead, he removed cash he found in the purse and then discarded the purse in a nearby trash dumpster.
On appeal, defendant argues that the trial court erred when it granted the State's application to replace Juror Eleven during the course of deliberations. He asserts that Juror Eleven did not meet the inability-to-continue standard of Rule 1:8-2(d)(1) and that Juror Eleven should have been retained or a mistrial declared.
As an initial observation, despite defendant's contention on appeal that Juror Eleven was replaced over his objection, the record merely reflects defense counsel's concern that Juror Eleven wanted to be removed because she felt threatened by the other jurors, presumably because of a position she had taken during deliberations. For our purposes, however, we view defense counsel's expressed concerns as an objection to Juror Eleven's removal because of her interaction with the jurors.
These are the facts which led to Juror Eleven's removal. Two hours and nineteen minutes into deliberations on the first full day of jury deliberations, Juror Eleven sent out the following note: "I'm Juror Number 11. I cannot continue to deliberate in this trial. Not sure that I can be objective in this case especially with the pressure, with being pressured by the other jurors. It is my obligation to disagree. I'm feeling threatened."
After receiving this note, the court questioned Juror Eleven. The court instructed her not to reveal the substance of the jury deliberations, but to state why she wished to be excused. Juror Eleven explained that it was both her desire not to be pressured by the other jurors to make a decision, as well as religious beliefs, stating, "[w]ell, I would say mostly it's my religious beliefs. I want to live with myself when I leave here." Later she said, "I thought that I could at that time [follow the law and apply the facts], Your Honor. And I apologize to the Court. At this time I found out different."
Following Juror Eleven's response, the court and attorneys discussed the issues at sidebar. Juror Eleven was never specifically asked how her religious beliefs impacted her ability to deliberate. The court assumed that her religious beliefs would not allow her to convict the defendant of murder.
The prosecutor expressed concern about Juror Eleven's ability to discharge her responsibilities, stating that it was "unfair" to force her to deliberate. He requested that "she be granted what she's asking for and that the alternate be put in." The court also ...