On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Essex County, 04-12-3785.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Kestin, Graves and Lihotz.
Defendant, Oscar Porter, was charged in a nine-count indictment with second-degree conspiracy, N.J.S.A. 2C:5-2, -4, and N.J.S.A. 2C:15-1 (first count); two instances of first-degree robbery, N.J.S.A. 2C:15-1 (second and fifth counts); first-degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3 (third count); second-degree aggravated assault, N.J.S.A. 2C:12-1b(1) (fourth count); felony-murder, N.J.S.A. 2C:11-3a(3) (sixth count); purposeful and knowing murder, N.J.S.A. 2C:11-3a(1),(2) (seventh count); third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b (eighth count); and second-degree possession of a handgun with purpose to use it unlawfully, N.J.S.A. 2C:39-4a (ninth count).
During a three-day trial, the testimony disclosed the existence of two victims, one who died from a gunshot wound to the head, and the other who was wounded and who testified as a witness for the State. Counts Two, Three, and Four dealt with the crimes allegedly committed on the surviving victim. Counts Five, Six, and Seven referred to the deceased victim. Counts One, Eight and Nine contained charges relating to both victims. The central issue in the trial was identification.
Jury deliberations began on the third day, June 14, 2005, at 12:14 p.m. On June 15, at 4:25 p.m., after informing the court that it could not reach a verdict on one of the counts, the jury announced it was prepared to report its verdicts on the remaining charges. The court took the verdicts in the order of the counts charged, the foreperson reporting guilty verdicts on Counts One, Two, Three, Four, Six, Eight, and Nine. The foreperson reported a not-guilty verdict on the first-degree robbery charge in Count Five and the jury's inability to reach a verdict on the murder charge in Count Seven.
The court then proceeded to poll the jury. The jurors signified unanimous agreement with the reported guilty verdicts on Counts One, Two, Three, and Four; and with the not-guilty verdict on Count Five. During the poll on Count Six, as the court reached the fourth juror to respond, Juror Number Six, the following colloquy occurred:
JUROR: Yes. I'm sorry, I have to be honest.
[DEFENSE COUNSEL]: What did you say, judge?
THE COURT: You['re] saying no, this is not your verdict?
JUROR: No. I'm sorry, I have to be honest.
THE COURT: Okay. You're saying no[,] this is not your verdict. All right. You know what we're going to do, ladies and gentlemen, we're going to return tomorrow morning at 9 ...