November 20, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DEON R. ELLIS, A/K/A DICE, DEFENDANT-APPELLANT.
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
KENTON RODNEY, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Passaic County, 03-07-0677-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 15, 2007
Before Judges Weissbard, S.L. Reisner and Baxter.
Defendants Deon Ellis and Kenton Rodney appeal their convictions after a joint jury trial. A six count indictment charged the defendants, along with Christopher Hall and Dawn Smith, with the following offenses: murder, N.J.S.A. 2C:11-3a(1) or (2) (Ellis) (Count One); first-degree robbery, N.J.S.A. 2C:15-1 (Ellis, Hall, Rodney and Smith) (Count Two); possession of a weapon -- a handgun -- for an unlawful purpose, N.J.S.A. 2C:39-4a (Ellis, Hall and Rodney) (Count Three); unlawful possession of a handgun, N.J.S.A. 2C:39-5b (Ellis, Hall and Rodney)(Count Four); possession of a weapon by a previously convicted felon, N.J.S.A. 2C:39-7 (Ellis) (Count Five); and tampering with evidence, N.J.S.A. 2C:28-6(1) (Smith) (Count Six).
Following a trial in November 2004, Ellis was convicted on Counts Two, Three, Four and Five, but the jury was unable to reach a verdict on Count One. Rodney was acquitted of Counts Three and Four but the jury was unable to reach a verdict on Count Two. Hall was convicted of robbery and unlawful possession of a weapon. Smith entered into a plea agreement wherein she agreed to plead guilty to the first-degree robbery in Count Two, to be sentenced as a second-degree offense, subject to NERA, and Count Six, a fourth-degree offense, to run concurrent with Count Two. As part of her plea agreement, Smith agreed to testify against her co-defendants.
In June 2005 Rodney and Ellis were retried on the undecided counts. Ellis was convicted of aggravated manslaughter as a lesser offense of murder. Rodney was convicted of second-degree robbery as a lesser offense of first-degree robbery. On July 15, 2005, Ellis was sentenced to twenty-seven years in prison, subject to the 85 percent parole disqualifier of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. On September 9, 2005, Rodney was sentenced to nine years in prison, subject to NERA.
The defendants having separately appealed, we ordered that the appeals be calendared back-to-back and we now dispose of both appeals in this single opinion. In his appeal Ellis presents the following arguments:
POINT I: BECAUSE NO EVIDENCE INDICATED THAT DEFENDANT INTENDED TO CAUSE THE VICTIM'S DEATH, THE PROVISION OF THE FACTUALLY UNSUPPORTED JURY INSTRUCTIONS THAT DEFENDANT COULD BE FOUND GUILTY OF MURDER IMPROPERLY INFLUENCED THE JURORS TO RETURN A VERDICT OF AGGRAVATED MANSLAUGHTER, IN VIOLATION OF DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. (Partially Raised Below)
POINT II: THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION FOR A MISTRIAL AS A RESULT OF JURY TAINT.
POINT III: THE COURT SHOULD NOT HAVE PROVIDED THE JURY WITH A FLIGHT CHARGE, AND THE CHARGE PROVIDED WAS INADEQUATE BECAUSE IT FAILED TO INCLUDE THE DEFENDANT'S EXPLANATION FOR HIS DEPARTURE. (Not Raised Below)
POINT IV: THE IMPOSITION OF A TWENTY-SEVEN YEAR TERM, 85% TO BE SERVED WITHOUT PAROLE, IS MANIFESTLY EXCESSIVE BECAUSE THE TRIAL COURT GAVE UNDUE WEIGHT TO THE AGGRAVATING FACTORS AND FAILED TO FIND RELEVANT MITIGATING FACTORS.
POINT V: IN THE ALTERNATIVE, THIS MATTER MUST BE REMANDED FOR RESENTENCING PURSUANT TO STATE v. NATALE, 184 N.J. 458 (2005). (Not Raised Below)
In his appeal, Rodney argues:
POINT I: THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION FOR A MISTRIAL AS A RESULT OF JURY TAINT.
C. THE DEFENDANT WAS DENIED THE RIGHT TO HAVE HIS CASE TRIED BEFORE AND DECIDED BY A COMPLETELY FAIR AND IMPARTIAL JURY BY VIRTUE OF THE TAINT ARISING OUT OF THE INFORMATION PROVIDED TO OTHER JURORS BY JUROR NO. 12, WARRANTING THE MOTION FOR MISTRIAL SOUGHT BY DEFENSE COUNSEL.
POINT II: THE DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL AS A RESULT OF THE TRIAL COURT'S RULING PERMITTING THE STATE AND CO-COUNSEL TO ELICIT ADDITIONAL PORTIONS FROM THE DEFENDANT'S PREVIOUSLY-REDACTED STATEMENT TO THE POLICE WHICH ADVERSELY IMPACTED UPON THE CREDIBILITY OF THE DEFENSE'S CASE.
POINT III: THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION FOR A JUDGMENT OF ACQUITTAL AS TO FIRST DEGREE ROBBERY EMBODIED IN COUNT II, THEREBY NECESSARILY TAINTING THE JURY'S VERDICT FINDING THE DEFENDANT GUILTY OF THE LESSER OFFENSE OF SECOND DEGREE ROBBERY ARISING THEREFROM.
POINT IV: THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.
We find merit in Rodney's Point I and Ellis's Point II, requiring reversal and remand for a new trial. We address only those other issues that may arise at a retrial.
The State's case hinged on the testimony of two witnesses, Michael Messina and Dawn Smith. The following synopsis is primarily drawn from their testimony.
In the early morning hours of March 15, 2003, Michael Messina was driving his Jeep in the area of Auburn Street and Broadway in the City of Paterson. As he was driving, Messina saw Ebony Morris and Dawn Smith. Messina initially thought Dawn was a girl he knew as "Stay High," who was in fact Smith's sister, Nikki Smith. After realizing his mistake, he began to speak with Morris because he was "looking for someone to hang out with, like chill with, a female." Morris cut him off stating that she had a boyfriend and did not sleep around on him. Messina then turned his attentions to Smith after she stated that she had "a man but didn't give a fuck."
Smith told Messina that she would be interested in hanging out but that she could not do it at the moment because her "baby father" was waiting for her to return. Messina gave his business card to Smith, which contained his cell phone number. Messina, a local drug dealer, used the card so that his customers would be able to contact him.
During the conversation, Smith and Morris told Messina they were on their way to pick up some food. Messina offered to give them a ride. While Messina waited outside the restaurant and the women were inside, he received a phone call from a customer looking to make a purchase. Messina, who had offered to drive the women home, told them that before he was able to do that he had to make a delivery to a customer and they were free to join him.
Messina, accompanied by the women, drove to meet with his customer. There he sold the purchaser one bag of heroin and one bag of crack cocaine. When Messina was exiting the car, he reached into his glove compartment and retrieved his bag of drugs. Smith, seated in the front seat, observed Messina's actions. She also saw him make change from a large wad of bills he had in his pocket. After completing the transaction, Messina drove Morris and Smith back to Smith's home, located at 43 Auburn Street. Smith told Messina that she would call him later that day so they could get together.
When Smith and Morris returned to the apartment, Ellis, Rodney, and Hall were in the kitchen talking, and Smith's four daughters were watching cartoons in the living room. Smith told Morris that she planned to call up Messina and "chill with him" so that she could get money from him. She felt that he was the type of male who would give money to a pretty girl and that he was a "sucker."
The next morning, Smith called Messina's cell phone several times. When Messina woke up around 9:00 a.m., he noticed that he had several messages from Smith on his cell phone asking to meet up with him. Messina finally returned Smith's phone calls and said that he was going to pick her up and take her out to eat. They arranged to meet at her place.
Prior to Messina having returned her calls, Smith began talking to Morris about meeting up with Messina. Rodney, who was Morris' boyfriend, overheard the conversation and he, along with Ellis and Hall, became involved in the conversation. Once they joined in, Smith's plan to get some money from Messina began to evolve. Rodney suggested that it would be better if Smith went to Messina's house and called them once she learned the address. He stated that nobody would be hurt, but that he intended to "whoop his ass and take his money." While this was happening defendant did not say anything. Hall, however, stated that he did not want to be involved in the plan.
When Messina arrived to pick up Smith, he parked in front of Smith's building, and noticed three men that he had never seen before walking towards him. The men looked at him in a way that made Messina feel uncomfortable. Eventually, the three men went inside Smith's building. Smith emerged shortly thereafter. Morris met Smith in front of the building and the two women entered Messina's truck. Messina was initially upset that Morris was tagging along, but Smith convinced him that she would not bother them. After driving to a liquor store to buy alcohol for Smith, Messina drove to his home on Albion Avenue.
When they arrived at the house, Messina retrieved his bag of drugs from the glove compartment. Smith had discovered the drugs earlier while Messina was in the liquor store. All three individuals went inside. Messina dead-bolted the door, as was his usual practice, upon entering the home. Then, Messina went upstairs, placed the drugs in his dresser and gathered together items to take a shower. However, prior to Messina going upstairs, Smith asked if she could make a call and Messina allowed her to use his cell phone. While Messina was upstairs, Smith used the phone to call her house. She spoke with Ellis and told him Messina's address. Ellis indicated to Smith that "we'll be there."
Smith then convinced Messina that they should shower together and they both went into the bathroom. Morris, who had been in the living room rolling a blunt (an emptied cigar filled with marijuana), came into the bathroom and told Messina that a customer was calling. Messina considered the caller to be a preferred customer, so he got out of the shower and took the women with him to make the drug transaction.
As they were leaving the house, Messina noticed the same three men that he had seen go into Smith's building when he picked her up. Smith recognized the men as Ellis, Hall and Rodney. When Messina asked Smith about the men, she denied that she knew them. They then left and completed the drug transaction.
Upon returning to his home, Messina did not see the men again. They went back inside the house and Messina again locked the door. Once inside, Messina went back upstairs to hide his drug stash. He then came downstairs and got back into the shower with Smith. Morris stayed in the living room. While Messina and Smith were in the shower, Morris knocked on the door and stated that she was going outside to smoke a cigarette.
This was the signal to Smith that the men were outside and that Morris was about to let them in.
Shortly thereafter, Ellis burst into the bathroom, tore down the shower curtain and pointed a gun in Messina's face. Smith left the bathroom and Ellis ordered Messina out of the bathroom, forcing him to lie naked on the living room floor. As he was being held at gunpoint, Messina recognized Hall and Ellis as two of the men he had seen outside of his home and at Smith's building earlier that day.
While he pointed the gun at Messina's head, Ellis demanded that Messina tell him where he kept his money and drugs. Hall told Messina that they would not hurt him if he gave them what they wanted. Ellis tied Messina up with the cord from a vacuum cleaner. Messina repeatedly denied having any drugs, but he said that his money was in his pants pocket. Hall searched through Messina's clothes and took the money from his pants. Hall then went upstairs, leaving Messina alone with Ellis.
At this point, Messina told Ellis that he kept the drugs in his car, hoping that Ellis would go and look. Messina believed that because he had seen only Ellis carrying a gun, if Ellis were outside he would be able to get free and overpower Hall. This plan did not work because Hall returned and Ellis sent him to check the car for the drugs. Ellis then hit Messina in the head with the revolver and asked if he had ever been smacked with a "Luger" before. A short time later, Hall returned and said that there were no drugs in the car.
At this point, Messina became worried that his mother, with whom he shared the house, would be returning shortly. In order to get the men out of the house, Messina told them that the drugs were upstairs in the dresser. Hall went upstairs and returned shortly thereafter without the drugs. Realizing that they had searched the wrong room, Messina directed Hall to his bedroom. Hall and Smith then went up to the second floor and retrieved the drugs from the dresser. As Hall was nearing the bottom of the stairs, the doorbell rang and the front door began to open. Ellis turned from Messina, pointed the gun at the door and fired one shot as it opened. The shot struck Morris in the face, killing her instantly as she stepped into the doorway. The house then erupted into chaos; Ellis dropped the gun and fled from the house with Hall.
Moments after the shooting, Messina, still naked, was able to free himself from the cord. He grabbed his mother's coat off of the couch, wrapped it around him, and ran outside after the men who had been inside his home. From his front porch, Messina saw Ellis and Hall running down Albion Avenue and he shouted, "they just shot somebody in my house, yo, yo, somebody stop them." While on the porch, Messina saw Rodney "jogging" behind Ellis and Hall. Rodney turned around, looked at Messina, and made a throat slashing movement with his left hand.
Messina went back inside and ran upstairs to get dressed and to call 911, leaving Smith and the gun downstairs. Although he had told her not to touch the gun, Smith took the weapon and tossed it out the bathroom window. When Messina came downstairs, Smith told him "they came back and got [the gun]." Shortly after the call, paramedics arrived, followed by the police. While the police were questioning Smith and Messina, another officer discovered the gun on the ground outside of the bathroom window. At that time, the police took Smith and Messina to police headquarters for further investigation.
At police headquarters Messina was able to pick out Ellis's photograph as he was looking through several books of photographs. Although she initially tried to minimize her involvement, Smith told the police the names of each of the other individuals involved.
The next day, March 16, 2003, the police received information that Ellis was located at 315 Van Houten Avenue. Police found Ellis at that location, sleeping in a closet underneath the stairs in the common hallway. He was arrested. A few days later, while in custody, Ellis called his girlfriend, Nikki Smith, Dawn's sister, from the Passaic County Jail. During that phone call defendant told Nikki that, "it was a mistake, I shot Ebony."
In April 2003, Smith and her sister were in their apartment when they noticed a man walk up the back steps to their house. Initially, they did not recognize the man because he had on dark sunglasses and had his head covered. They soon realized that it was Rodney, and Smith began talking to him. Smith's sister left to go to the store, and while she was out she contacted the police who responded shortly and arrested Rodney. The police learned that Hall had gone to Florida, but that he was going to return to New York on May 2 by bus and under a different name. Based on that information, the police set up surveillance and arrested Hall as he exited a bus.
Defendants claim that their convictions should be reversed because the trial judge denied their motion for a mistrial as a result of jury taint. Specifically, defendants argue that they were denied a fair and impartial jury because a juror shared extraneous information regarding Christopher Hall with two other jurors. We agree.
A criminal defendant is guaranteed the right to a fair trial by an impartial jury under the Sixth Amendment of the United States Constitution and Article I, paragraph 10 of the New Jersey Constitution. State v. R.D., 169 N.J. 551, 557 (2001). This guarantee "includes the right to have a jury decide the case solely on the evidence presented at trial, free from the taint of outside influences and extraneous matters." Ibid. (citations omitted).
In R.D., supra, 169 N.J. at 557-58, the Court took note of its holding in State v. Bey, 112, N.J. 45, 83-84 (1998), that "if during the course of trial it becomes apparent that a juror may have been exposed to extraneous information, the trial court must act swiftly to overcome any potential bias and to expose factors impinging on the juror's impartiality." Furthermore, the court is obliged to interrogate the juror, in the presence of counsel, in order to determine the existence of taint. R.D., supra, 169 N.J. at 558. If the court determines that taint is present, the court must then expand its inquiry to determine if any other jurors have been tainted. Ibid. (citing Pressler, Current N.J. Court Rules, comment 2 on R. 1:16-1 (2000)). After excusing the tainted juror or jurors, the court must then determine if a mistrial is required. Ibid.
Whether to grant a mistrial as the result of taint is within the sound discretion of the court. Ibid. However, "'[i]f the irregular matter has that tendency on the face of it, a new trial should be granted without further inquiry as to its actual effect. The test is not whether the irregular matter actually influenced the result, but whether it had the capacity of doing so.'" Ibid. (quoting Panko v. Flintkote Co., 7 N.J. 55, 61 (1951)); See also, State v. Hightower, 146 N.J. 239, 266-67 (1996) (stating "[a]ny juror misconduct or improper intrusion into the deliberations of a jury that 'could have a tendency to influence the jury in arriving at its verdict in a manner inconsistent with the legal proofs and the court's charge' is a ground for a mistrial." (citations omitted)).
Even so, a mistrial is not required in every instance where it appears that an individual juror has been exposed to an outside influence. R.D., supra, 169 N.J. at 559 (citing Smith v. Phillips, 455 U.S. 209, 217, 102 S.Ct. 940, 946, 71 L.Ed. 2d 78, 86 (1982)). "Ultimately, the trial court is in the best position to determine whether the jury has been tainted." R.D., supra, 169 N.J. at 559. In making this determination, the trial court must consider "the gravity of the extraneous information in relation to the case, the demeanor and credibility of the juror or jurors who were exposed to the extraneous information, and the overall impact of the matter on the fairness of the proceedings." Ibid. Upon appellate review of the trial court's determinations as to these issues, the abuse of discretion standard applies. Ibid.
In the present case, the jury began its deliberations on the morning of June 21, 2005. After deliberating for the entire day the jury was excused for the evening. Upon resuming deliberations in the morning, the judge received a note from Juror #12 that she wished to speak to the judge. The juror was brought into the courtroom where the following colloquy took place in the presence of counsel:
THE COURT: Now, what is it that you want to speak to me about?
JUROR #12: I can't do this.
THE COURT: What do you mean by that? JUROR #12: I can't. I feel one way and they feel one way, and I'm not changing it.
THE COURT: You're entitled to your opinion, and that's what deliberations are about. You shouldn't change your opinion unless you feel it is wrong. You should listen to the opinion of the other jurors, but ultimately the bottom line is whatever you feel is how you should vote.
I can't excuse you because you might not agree with some other jurors. That's not a reason to excuse someone, and that's what jury deliberations are.
JUROR #12: No, but they want to send an alternate in, and they think it would be better for them so they can get out of here on time.
THE COURT: I understand that, but I can't replace a juror that way under the law. I don't want you to report to the other jurors anything that I'm saying to you, but I cannot excuse you because you have a difference of opinion from the other jurors. That's not a reason to excuse you.
Everyone is to study the evidence and analyze the evidence consistent with the law that I've given and then vote on what they believe the evidence has shown beyond a reasonable doubt. That's what you are supposed to do. Every juror has to judge the case individually for themselves.
So, is there anything else that you want to say?
JUROR #12: No.
Shortly thereafter another note was received from the jury, this time from the foreperson, Juror #1. Brought into the courtroom Juror #1 stated that "two people on the jury told me that one of the jurors knows one of the people involved in the case." Juror #1 clarified that the juror in question was Juror #12 and that the person who allegedly was known to the juror was Christopher Hall. During the following colloquy between the court and counsel it was noted that Juror #12 had not mentioned anything about knowing Hall when she was in the courtroom shortly before. In addition, counsel reminded the court that when Dawn Smith was testifying she had indicated that she thought she recognized three of the jurors, one of whom was Juror #12. At that time none of the jurors indicated that they recognized Smith.
Upon being recalled to the courtroom, Juror #1 stated that the two jurors who had indicated receiving information from Juror #12 were Jurors #3 and #4. When the judge inquired whether "this [was] discussed with the other people in the jury room, [i.e.] that Jurors #3 and #4 said that Juror #12 knows someone involved in the case," Juror #1 responded affirmatively. Juror #1 elaborated that:
After she [juror twelve] spoke to you last time, she went straight into the bathroom and sat in there for a long time. Apparently she seemed a little upset, and so they . . . somebody went in there to kind of I guess talk to her or something. Then the other two came forward and said that.
Further questioning revealed that Juror #12 had imparted the information to Jurors #3 and #4 "prior to now," although the time frame was not made clear.
Upon being summoned to the courtroom, Juror #3 stated that she had learned "yesterday" from Juror #12 that she knew Christopher Hall "who has been referred to during the trial" and that Juror #12 "knows of him from like a party that she said she saw him at, and she knows his background and stuff. I think that that's swaying her and starting to hold her back." In addition, Juror #3 said that Juror #12 told her that Hall was "in for life." The juror "assumed" that Hall's prison sentence "was for the robbery and other trouble that he's been in." The conversation with Juror #12 had taken place on the shuttle bus.
When the judge asked whether any of this information had been discussed in the jury room, Juror #3 stated "not with everybody, but people are starting to whisper and so I think she was telling somebody else. They were talking while maybe I was talking with the foreman . . . and so things are like being said . . . because, you know, she's having a hard time, so we were trying to get her . . . we told her to tell you."
Next, Juror #4 was brought to the courtroom. Juror #4 stated that Juror #12 had told her that she knew "things about Christopher Hall." The statement came up "during deliberations and talking about things that happened in the case and problems that she had with what had gone on with the case." Juror #4 continued that Juror #12 had stated that Hall "was in jail for certain things. And something to the effect that she knew what kind of person he was."
With the agreement of counsel, Juror #12 was then brought back into court. Upon questioning she denied that she knew Christopher Hall or knew of him and denied further that she knew anyone "connected with this case." She did say that a girlfriend of hers knew a person who had been in the courtroom at the time Dawn Smith was testifying. Juror #12 related an incident where she was having her hair done at someone's home and that man came to the door. She recognized him as having been in the courtroom when Smith was testifying and understood that he was the father of the child Dawn Smith was pregnant with (apparently at the time of her testimony). When she saw the man he was wearing a shirt that said "Stop Snitching;" this was the same shirt she observed on the man while he was in the courtroom. Because she was on the jury, she "hid in a closet" while the man was in the house. She denied telling jurors that anyone with the nickname used by Christopher Hall ("Blacks") was incarcerated.
After the jurors were excused, counsel for Rodney pointed out that the juror responses clearly were conflicting and stated that in his view "this entire jury has been tainted by who knows what exactly has gone on in there." He requested a mistrial. In response, the prosecutor analyzed the situation as suggesting that the jury had in fact reached a verdict the prior day and merely wished to "sleep on it" over the ensuing evening. He went on to suggest that Juror #12 had second thoughts at that time. As a result he was of the view that anything imparted to the jurors by Juror #12 could not have influenced the jury. He did, however, state that "Juror #12 was not honest with us." He went on as follows:
The information that [Juror #12] has should have been shared with the Court. She didn't tell us what she should have told us. If she had said at any time during the course of this trial or during jury selection, you know, I know Christopher Hall and I am aware that something happened to him and that he is in prison, we would have said thank you, you are excused, [Juror #12]. Nobody would have been able to say anything about it because it would have been the right thing to do.
Noting that "there are some conflicts in the testimony," the judge stated that he was not inclined to "make a credibility call on this." He did observe that "it would be hard to contemplate that Jurors #3 and #4 said something about [Juror #12] that is not true. Certainly their account is different than hers[.]" The judge then continued at some length, as follows:
Now, I can't candidly or honestly say that I could conscientiously deal with this by saying that it's just a mistake and to resolve the conflict that way. There is a difference of accounts here. You have to input the information about the long sentence that's being served, and that couldn't be the man with the shirt who came to get his braids done the other day. You couldn't attribute that to the father of Dawn Smith's child.
So, I can't - - I wouldn't allow myself to jump on that convenient resolution which the last information we got from [Juror #12] might suggest. I can't make credibility findings either about jurors. I don't feel that's appropriate. What the jury has learned or some of them believe is that Christopher Hall is serving a long sentence which perhaps, or at least in part, is a result of this case.
Mr. Ellis has taken the position that Christopher Hall is the killer, and [Rodney's counsel] has not contradicted that position at all. In fact, he takes the position that certainly, if not explicitly, or unquestionably and inferentially it's clearly understood that this robbery and killing occurred and that the people inside were Ellis and Hall, and nothing was presented to suggest anything other than that and no one could listen to the defense for Rodney and think anything other than that. There's no way to water that down.
So what is the deleterious effect of what we have here? I can't identify that. I'm inclined to think that I should remind the jury that they are to decide the case based on the evidence that they have heard in this courtroom, and that their verdicts shouldn't be based on anything but what I have repeatedly and from the very outset of this case defined to be the evidence. In addition, there were several times during the course of the trial of reminders about what constitutes evidence. That's firmly embedded in the record of this case.
So, I'm inclined to think that I should remind the jurors that they're to decide the case based on the evidence that they have heard here. I'm not inclined to feel that a mistrial, which is an extraordinary remedy in this context, should be granted. There are some irregularities here, but I think that they - - the consequences of them are really minimal. There is a difference of opinion, perhaps, in the jury room, but I'm not concerned about that and that's for the jurors to resolve. It is not a problem for the Court or the lawyers, I don't think.
What I'm going to do is I'd like to hear from the lawyers further, but what I'm thinking of doing is bringing the jury out and instructing them about what constitutes evidence, and remind them of their oath to decide the case based only on the evidence that they have heard in the courtroom and which I've explained repeatedly as to what constitutes the evidence. Then I will direct them to resume deliberations.
The judge indicated, in response to an inquiry from Rodney's counsel, that the motion for a mistrial was denied. As an alternative, counsel asked that the court give the jury "the modified Allen charge."*fn1 In response to that suggestion, the judge stated his concern that the jury had not indicated that they were deadlocked, but merely that "there's a difference of opinion at the moment." He noted that the jury had deliberated only for "a little over an hour" on the prior day.*fn2 The judge then determined that he would simply instruct the jurors about their obligation, and the following ensued:
Ladies and gentlemen, let me review with you two areas that I've talked about with you previously. The first area is what constitutes evidence. We talked about this even during the jury selection process and in my initial instructions to you, and there were reminders during the course of the trial as well, such as in the instructions at the end of the case.
You will remember that evidence means the testimony that you have heard and seen from the witness seat, the exhibits that have been admitted into evidence, as well as the fair and reasonable inferences that arise from the testimony and the exhibits.
Your verdict and your judgment about this case must be based on the evidence as I have just explained to you constitutes evidence. Anything outside of that is not evidence and is not something upon which you can base your decision and your judgment on this case. It must be based on what constitutes evidence. You will remember that I explained to you there's different kinds of evidence, direct and circumstantial. We're not going to go over that again, and I'm sure that you understand it very well.
The point being that you must judge the case only based on the evidence, that is, what you have heard and seen from each witness that testified, the exhibits that were put into evidence and the fair and reasonable inferences that arise from the testimony and the exhibits. Anything else in the nature of information that does not fall within that definition of evidence is not to be considered by you in arriving at your verdict.
Remember that your verdict must represent the considered judgment of each juror. In order to return a verdict on any charge, it is necessary that each juror agree thereto. Your verdict must be unanimous. You must deliberate on separate cases; you must deliberate the case against Deon Ellis separately from your deliberations on the case against Kenton Rodney. You must have separate deliberations for each charge that you consider and for each defendant.
Remember that it is your duty as jurors under your oath to consult with one another and to deliberate with a view to reaching an agreement, if you can do so without violence to individual judgment. Each of you must decide the case for yourself, but do so only after an impartial consideration of the evidence with the other jurors.
In the course of your deliberations, do not hesitate to re-examine your own views and change your opinion if convinced it is erroneous. But do not surrender your honest conviction as to the weight or effect of evidence solely because of the opinion of the other jurors or for the mere purpose of returning a verdict. You are not partisans. You are judges, judges of the facts.
Your obligation is to judge the case fairly and honestly based on your honest opinion of the evidence consistent with the law as I have given it to you for the purpose of arriving at a fair and correct verdict.
We are going to ask you now to continue to resume your deliberations, and we'll ask the alternates to step out. If we haven't taken a lunch order, I guess this would be the time. Thank you. Just step in the jury room.
The jury resumed deliberations at 12:10 and adjourned for lunch at 12:30. Upon resuming, the jury sent another note stating that they "had a verdict on Count Two" but were "desperately hung on Count One against Deon Ellis." They had also asked for a read back of the Messina testimony, or certain parts of it, but then subsequently stated that they did not wish to hear that testimony. The judge then brought the jury back into court and delivered to them the so-called Allen charge, directing them to continue their deliberations. The jury continued deliberations at 2:10 p.m. Just a few minutes later the jury sent yet another note requesting to hear a certain aspect of Messina's testimony. However, there were two reporters involved, one for the direct examination and another for the cross-examination. As a result, the direct examination portion requested by the jury was read back, but apparently the cross-examination portion could not be read at that time. The jury was returned to the jury room at 3:49 p.m. and in two minutes announced that they had reached a verdict.
While we recognize the difficult position the judge was placed in, and commend him for his effort to resolve the quandary short of a mistrial, we conclude that one or more of the jurors in question should not have continued to serve on the deliberating jury. As a result, their participation tainted the deliberations and the eventual verdict.
With respect to Jurors #3 and #4, it is clear that the judge credited their testimony that Juror #12 had stated to them, or in their presence, that she knew Christopher Hall and that he was "doing life." At least one of the jurors assumed this was the result of Hall's participation in the events that led to the case on trial. From this, the obvious damage was that the jurors might infer that "birds of a feather flock together;" in other words, defendants were likely to be guilty because their compatriot had been convicted of crimes arising out of the same incident. In any event, the judge should have at least questioned the jurors to be certain they did not have such views. Further, based on the voir dire it seems likely that other jurors were exposed to the same information. Thus, the entire panel should have been questioned. We have emphasized the necessity for "a probing inquiry" in such circumstances. State v. Scherzer, 301 N.J. Super. 363, 487-88 (App. Div. 1997), certif. denied, 151 N.J. 466 (1997). Here, there was no such inquiry, although the facts elicited from Jurors #3 and #4 called out for further questioning.
Beyond this, the questioning of Juror #12 virtually mandated her removal from the case, even though she appeared to be a lone holdout.*fn3 While the trial judge declined to make "a credibility call," the conclusion appears inescapable that this juror did know Hall, did convey the information about him to the other jurors and, most importantly, lied under oath in her questioning by the judge about the incident. The juror's misconduct called for her removal.*fn4 See State v. Loftin, 191 N.J. 172, 192 (2007); State v. Wormley, 305 N.J. Super. 57, 65-70 (App. Div. 1997), certif. denied, 154 N.J. 607 (1998).
Regrettably, we conclude that the conscientious trial judge misapplied his discretion, to the extent that he may be said to have exercised discretion, in refusing to conduct further inquiry, remove one or more of the jurors, or declare a mistrial. See R.D., supra 169 N.J. at 560-61. Where "the integrity of the jury process" is called into question, we have held that [i]f the record fails to show whether or not the irregularity was prejudicial, it is presumed to be so anyhow to be cause for reversal. It is only when the irregularity is affirmatively shown to have had no tendency to influence the verdict that a reversal is not required. [State v. Grant, 254 N.J. Super. 571, 584 (App. Div. 1992) (quoting State v. Sachs, 69 N.J. Super. 566, 588 (App. Div. 1961)).]
See also, Loftin, supra, 191 N.J. at 190, 196; Hightower, supra 146 N.J. at 267; Panko, supra, 7 N.J. at 61-62. As the Court emphasized in R.D., the concern is whether "extraneous information had the capacity to influence the result of the jury." 169 N.J. at 559. Here, unlike R.D. the extraneous information was communicated to other jurors and, on its face, had the capacity to taint the others. R.D. supra 169 N.J. at 562-63.
We reject the State's suggestion that any information concerning Hall could not likely have influenced the verdict because it was consistent with the defense strategy that Hall was in fact the culpable party. When confronted with the reality of jury exposure to extraneous, inadmissible and prejudicial information, we decline to embark on a hindsight analysis of the record or to reassemble the jurors long after the fact for an inquiry into what effect, if any, the information played in the verdict. Loftin, supra 191 N.J. at 199-200. Under the circumstances presented here we decline to follow State v. Bisaccia, 319 N.J. Super. 1, 16-20 (App. Div. 1999), appeal after remand, sub-nom State v. De Stefano, 339 N.J. Super. 153 (App. Div. 2001). We conclude that Juror #12's conduct unquestionably mandated her removal, and Jurors #3 and #4 were presumptively tainted by the information given to them by Juror #12. These conclusions are so clear that no remand is deemed necessary.
As a result of our disposition we have no need to address Rodney's Points II and III, or his sentencing claim in Point IV. As to Point III, we note that Rodney will only face retrial on second-degree robbery. Similarly, we need not address Ellis's Point I, since he will only be retried on aggravated manslaughter, nor his sentencing arguments in Points IV and V.
Ellis's contention that a flight charge was inappropriate may, however, arise at the new trial. We reject his argument as without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2). In fact, defendant did flee, evidence of his flight was probative, and the judge provided the jury with an appropriate charge on the subject.
Reversed and remanded for a new trial.