August 14, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
BRIAN S. JENKINS, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued February 28, 2007
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 expressed its concern that there was possibly an eleven-toone holdout.
Defense counsel was concerned that Juror Eleven was feeling threatened:
[DEFENSE COUNSEL]: Judge, my concern right now is with her statement that she says that she's being threatened by the other jurors.
THE COURT: Yeah. I haven't gone into that one yet. I'm trying not to because that makes me think, you know, that she may be an 11 to one hold out. But if she is being threatened, that creates a problem for her staying on the jury also.
[DEFENSE COUNSEL]: But my concern is that if the nature of it is, say, for sake of argument, about 11 to one that she is feeling -- that there's pressure from them -- that there is an assertion at that point that her religious beliefs may play into that, it would be her position to get out of this. Because we were very careful when we went through jury selection and this didn't come up at that point.
My request at this point, Judge, would be for you to delve into it just a little bit further. That this isn't some pretext for her from jury service. You know, part of the charge, Judge, is that they're instructed to listen to other people. But if they have an honest belief in something, to maintain that.
The court continued its dialogue with Juror Eleven, but this time specifically asked whether she was more disturbed by her religion or the threats by the other jurors. She responded, "[w]hich is more important to me? Well, actually at this moment they both are. Because as I said before, it's hard. . . . And how do I say it? . . . I am sick to the stomach. And I don't know -- I can't handle it."
The judge again inquired of Juror Eleven whether it was her religious beliefs, and she once again responded, "[b]oth. Combination, sir." The court then asked Juror Eleven whether she could resume deliberating, to which she responded, "[n]o." The prosecutor renewed his application to remove Juror Eleven and seat an alternate juror. The court queried defense counsel whether he had any other comments beyond what had already been placed on the record. Defense counsel responded that he had "[n]othing additional [beyond] what [he] said at sidebar . . . ." The court never specifically questioned Juror Eleven about her statement that she felt threatened. Instead, the court excused her and seated an alternate.
Rule 1:8-2(d)(1) sets forth, in pertinent part, that during deliberations, a juror may be discharged and replaced with an alternate juror when the "juror dies or . . . because of illness or [for other reasons has an] inability to continue[.]" Ibid.
Since "juror substitution poses a clear potential for prejudicing the integrity of the jury's deliberative process, [however] it should be invoked only as a last resort to avoid the deplorable waste of time, effort, money, and judicial resources inherent in a mistrial." State v. Hightower, 146 N.J. 239, 254 (1996). Accord State v. Valenzuela, 136 N.J. 458, 468 (1994) (determining that Rule 1:8-2(d) is to be narrowly construed and sparingly applied).
Recognizing the significant risk of prejudicing the jury's deliberative process when a juror is removed during deliberations, the Court, in State v. Williams, 171 N.J. 151, 163 (2002), held that a deliberating juror may only be removed "for reasons that are personal to the juror and that do not relate to the juror's interaction with the other jurors or with the case itself." If a juror's problem is "related not only to personal circumstances but also to factors arising from the juror's interactions with the other jurors," then the juror should not be removed. Valenzuela, supra, 136 N.J. at 473.
As Hightower explained, "the reason must be exclusively personal." Supra, 146 N.J. at 255. Thus, consistent with Hightower, where the removal is both personal to the juror and also involves the juror's interaction with the other jurors, removal of the juror and replacement with an alternate juror is not appropriate. Ibid.
According to Juror Eleven, the deliberations made her feel sick to her stomach, circumstances that meet the reasons-that-are-personal-to-the-juror standard. Williams, supra, 171 N.J. at 163. She repeatedly, without any prompting, told the court, however, that the fact that she felt threatened also influenced her desire to be excused. The court chose not to pursue any questioning about these feelings because the court thought "that she may be an 11 to one hold out. But if she is being threatened, that creates a problem for staying on the jury also."
From this record we cannot determine whether Juror Eleven's religious reasons or interaction with the jurors warranted her continued deliberation, removal and replacement with an alternate juror, or declaration of a mistrial. Obviously, appreciating the constraints against intrusion into the jury's deliberative process, the trial judge did not explore these issues in great detail.
For example, Juror Eleven's religious beliefs may have been that she should not compromise her judgment for the sake of reaching a verdict or because of the opinion of other jurors. Such a religious conviction would have been consistent with the law and not a basis for removal. See State v. Czachor, 82 N.J. 392, 405 n.4 (1980) (adverting to the model charge suggested by the American Bar Association). See also Model Jury Charges (Criminal), "Deliberations" (2004). On the other hand, if Juror Eleven's religious convictions prevented her from deciding the case based on the evidence, fairly and impartially, and she was prepared to disregard her own findings of fact because of a religious bias, then she would have been in violation of her oath and subject to removal. See State v. Jenkins, 182 N.J. 112, 128 (2004). Likewise, the court made no inquiry into Juror Eleven's statement that she felt threatened.
Without further information, there is no way to know whether Juror Eleven was properly removed and, if so, whether she should have been replaced or a mistrial declared. See Valenzuela, supra, 136 N.J. at 473. Under these circumstances, we are constrained to reverse defendant's conviction and remand for a new trial.
We also address the instructions to the jury once the alternate was seated. We are persuaded that even if the court properly removed Juror Eleven and seated an alternate, the instruction to the jury improperly sent mixed signals. See State v. Lipsky, 164 N.J. Super. 39, 44 (App. Div. 1978) (holding that "when an alternate juror is so substituted, the jury must be instructed in clear and unequivocal terms that it is to begin its deliberations anew"). Once Juror Eleven was replaced with the alternate juror, the court instructed the reconstituted jury as follows:
But now the rules require that since we have a new juror in the place of Juror Number 11, we have a different mix of people. We may possibly have a different mix of ideas. So you are required by law to begin your deliberations anew. Meaning you have to start over. Bring Ms. Vaughan up to date on where you are and act as if you were just starting your deliberations.
In State v. Trent, 79 N.J. 251 (1979), the Court cited, with approval, the guidelines given by the California Supreme Court to trial judges in cases where an alternate juror is substituted during deliberations:
The California Supreme Court also set forth a detailed guide for trial courts in instructing juries when an alternate is substituted during deliberations. We consider it, as did the Lipsky court, just and appropriate for this State:
We accordingly construe section 1089 to provide that the court instruct the jury to set aside and disregard all past deliberations and begin deliberating anew. The jury should be further advised that one of its members has been discharged and replaced with an alternate juror as provided by law; that the law grants to the People and to the defendant the right to a verdict reached only after full participation of the 12 jurors who ultimately return a verdict; that this right may only be assured if the jury begins deliberations again from the beginning; and that each remaining original juror must set aside and disregard the earlier deliberations as if they had not been had. [Id. at 256 (quoting People v. Collins, 131 Cal. Rptr. 782, 787 (Ct. App. 1976), cert. denied, 429 U.S. 1077, 97 S.Ct. 820, 50 L. Ed. 2d 796 (1977).]
The model criminal charge in effect at the time of defendant's trial, which the trial court did not give, was as follows:
As you know, Juror #____ has been excused from the jury. An alternate juror has been selected to take (his/her) place. Because of this change in your jury, you must set aside and disregard all of your past deliberations and begin your deliberations again, just as if you were now entering the jury room for the first time directly after listening to my charge. In beginning your deliberations again, you must eliminate any impact that Juror #____ may have had on your deliberations, and consider the evidence in the context of full and complete deliberations with the new member of your jury. [Model Jury Charges (Criminal), "Alternate Juror Empaneled After Deliberations Have Begun" (1979).]
More recently, in Jenkins, supra, the Court noted that there was room for improvement in the charge. Jenkins, supra, 182 N.J. at 136-37. In response to the Court's opinion, the charge was revised January 24, 2005 and now reads,
As you know, Juror #____ was excused from the jury. An alternate juror has been selected to take (his/her) place. The reason that (he/she) was excused was entirely personal to (him/her); it had nothing to do with (his/her) views on this case or (his/her) relationship with the other members of the deliberating jury. Please do not speculate on the reason why that juror was excused.
As of this moment, you are a new jury, and you must start your deliberations over again. The parties have the right to a verdict reached by twelve jurors who have had the full opportunity to deliberate from start to finish. The alternate juror has no knowledge of any earlier deliberation. Consequently, the new deliberating jury must start over at the very beginning of deliberations. Each member of the original deliberating jury must set aside and disregard whatever may have occurred and anything which may have been said in the jury room following my instructions to you. You must give no weight to any opinion expressed by Juror #____ during deliberations before that juror was excused. Together, as a new jury, you must consider all evidence presented at trial as part of your full and complete deliberations until you reach your verdict.
[Model Jury Charges (Criminal), "Alternate Juror Empaneled After Deliberations Have Begun" (Revised 1/24/05).]
Here, although the court instructed the jury to begin deliberations anew and to act as if they were just starting deliberations, the court also instructed the jury to bring the substituted juror "up to date on where you are." We are not satisfied that this instruction conveyed to the jury that in beginning deliberations anew, "each remaining original juror must set aside and disregard the earlier deliberations as if they had not been had." Ibid.
We also note that defendant was entitled to a jury instruction on theft as a lesser included offense of robbery. Defendant testified that he went to Hinson's home to discuss his mother's hospitalization and that the theft occurred after he stabbed Hinson following a confrontation which he claims she started. Such testimony suggests that the theft was an afterthought. We are therefore satisfied that if this testimony is credited by a jury, there is a rational basis for a verdict on theft. See Singleton, supra, 290 N.J. Super. at 341.
In light of this decision, defendant's remaining argument related to the sentence is moot.
Reversed and remanded for a new trial.
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