September 9, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MARCUS HAGGAN, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Hudson County, Indictment No. 05-01-30.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: May 19, 2008
Before Judges Stern, C.S. Fisher and Kestin.
Defendant, Marcus Haggan, appeals from his conviction, following a jury trial, of five third-degree crimes: possession of heroin, a controlled dangerous substance, N.J.S.A. 2C:35-10a(1); possession of heroin with intent to distribute, N.J.S.A. 2C:35-5a(1), -5b(3); two charges of possession of heroin in a school zone with intent to distribute, N.J.S.A. 2C:35-7; and distribution of heroin, N.J.S.A. 2C:35-5a(1), -5b(3). Defendant had also been charged with two second-degree drug crimes, which were dismissed by the State at trial.
Following mergers among the convictions and a grant of the State's motion for an extended term pursuant to N.J.S.A. 2C:43-6(f), the trial court sentenced defendant to two concurrent ten-year terms of imprisonment with five years of parole ineligibility. Fines, penalties and fees were ordered along with a twelve-month suspension of driving privileges and a requirement that defendant provide a DNA sample.
On appeal, defendant raises the following issues:
POINT I IT WAS JUDICIAL ERROR TO FAIL TO DISMISS THE FOREMAN AND NOT SEAT THE ALTERNATE JUROR.
POINT II THE SENTENCE IMPOSED BY THE TRIAL COURT WAS EXCESSIVE AND ABUSED ITS DISCRETION.
POINT III THE CASE SHOULD BE REMANDED FOR RESENTENCING AS THE RECORD BELOW DOES NOT CONTAIN FINDINGS OF FACT.
The jury began its deliberations at about noon on the third day of trial. Sometime in the afternoon of that day, the courthouse was evacuated because of an electrical problem. The jury was excused for the day and told to return the following morning. As the next day began, before the jurors were to resume their deliberations, the prosecutor asked to be heard at sidebar. The verbatim record discloses that an "inaudible discussion at sidebar" ensued. Following that discussion, the trial judge excused the jury to the jury room with an instruction not to recommence its deliberations, but told the jury foreperson to remain in the courtroom. The following colloquy occurred:
THE COURT: Mr. Foreman, the attorneys have advised me that yesterday after the jury left, that you had a conversation with the defendant, is that correct?
JURY FOREPERSON: There was no conversation, it was more of an acknowledgement. He came by and I nodded my head but I didn't speak to him or have a conversation.
THE COURT: Did you say anything to him?
JURY FOREPERSON: Just like hello was pretty much it.
THE COURT: Okay. You said nothing else[?]
JURY FOREPERSON: No.
THE COURT: And where did this take place?
JURY FOREPERSON: Outside.
THE COURT: Right in here?
JURY FOREPERSON: No, out in front.
THE COURT: Oh[,] out in front.
JURY FOREPERSON: Yes.
THE COURT: Okay. Still do not continue your deliberations. Could you just go back inside the jury room and wait? Thank you. And don't talk about this with anybody.
The foreperson had not been sworn as a witness before the foregoing exchange occurred.
After the foreperson left the courtroom, the judge requested that defense counsel "ask [his] client some questions about the conversation he may have had with the juror[.]" The following colloquy ensued, also without an oath having first been administered:
MR. ROBINSON [defense counsel]: Yes. Mr. Haggan, I bring your attention to yesterday. After the building was evacuated, did you have a chance to speak to juror number one?
MR. HAGGAN: Yes I did when I came outside. He nodded his head to me and he didn't give me a nod like this, he gave me a nod like -- and then he said it's not looking good. That's exactly what he --that's exactly what he said to me. He said it's not looking good so as soon as he said that, I rushed right to my attorney quick, to tell him. And that's exactly what I did. I came straight to him and said that he said that to me but I didn't ask him to tell me anything or not, I was just walking past.
THE COURT: You're saying he did have a conversation.
MR. HAGGAN: Yes he did. Right in front of the courthouse.
THE COURT: And he said it didn't look good.
MR. HAGGAN: That's what he said, Your Honor.
THE COURT: Okay.
MR. HAGGAN: He said it's not looking good for you. That's exactly what he said.
THE COURT: Now I'm asking for the [S]tate's position on this.
MR. CHOY [the prosecutor]: Before we do that, can I just get clarification because the picture that's emerging is not as clear as I had originally thought it to be. This occurs outside the building, correct?
MR. HAGGAN: Yes, going by -- as soon as we come out the metal detector, right there. As soon as you walk out the door.
MR. CHOY: Okay and when you encounter juror number one outside of the building, are you by yourself or are you with Mr. Robinson?
MR. HAGGAN: No, I was by myself. Mr. Robinson came through the back because I had Ms. Kemp on her crutches waiting right in front of the courthouse. I had to go get my car. As I was walking -- I made sure she was alright. I was walking off to get my car. He said to me, before that and I told her, he said it is not looking good. I said what did you say to me? She even asked me, what did he say to you and I said it, he said that it's not looking good at all.
MR. ROBINSON: Judge, for the record where he's speaking at is right at the bus stop because I was down the ramp myself.
Mr. Smith, and I believe Mr. Finkenauer and he came right down the ramp and said that --and he pointed to the juror so I assume Mr. Smith and Mr. Finkenauer saw the juror at the corner but I -- like I said I didn't know about the conversation. He told me and the first thing I did was I told Peter [Choy].
The judge then solicited the views of defense counsel and the prosecutor. In the exchange, responding to defense counsel's "request [for] a mistrial[,]" the judge expressed the tentative view that a mistrial would be inappropriate, but that he might consider removing the juror on the basis that he had "violated his oath" by failing to conduct himself in accordance with the court's instructions. The prosecutor took the position "that [the juror] be removed and he be replaced by the alternate."
The judge then described the procedure he would follow in resolving the question:
. . . I am going to ask juror number one, the foreman[,] to come up, take the stand. I'm going to swear him in and I'm going to ask him if those words were said. If he denies those words, I'm going to believe the juror and the juror is going to sit.
If he acknowledges he says those words, I'm going to -- I don't know what I'm going to do.
The juror was then called back into the courtroom and placed under oath. The following testimony transpired:
THE COURT: Sir, one of the -- the information that was given to me was that you said and this is a quote, "It doesn't look good." Did you have -- did you ever say words like that or any words like that?
JUROR: The only things that were said yesterday when I saw him crossing the street was hello. He said something to me, I didn't even pay no mind. I said I can't speak to you and goodbye.
The juror was then excused to the jury room once again, and the judge ruled:
Okay, as far as I'm concerned, I believe the version of the juror and since there is nothing except your client's testimony that's opposite and what was said, according to your client's version, could be interpreted in a lot of different ways, I am not going to declare a mistrial. I'm going to ask that the jury panel continue their deliberations and I'm going to keep the alternate available.
Unless somebody has any -- unless you can come up with some case law or some other argument. I have a clear dispute in the record of disavowing your client's version . . . .
The judge then asked juror number one, who had returned to the courtroom, whether he had discussed what just happened now with any other jurors.
JUROR: No, they just know that something is wrong.
THE COURT: And at this juncture would this conversation or events that took place just now have any effect on you at all?
THE COURT: Okay. What I'd ask is that you just tell them that we were handling a personal problem that had happened and I'm going to bring the rest of the jurors out now and tell them to continue to deliberate.
Before the jury returned to the courtroom, the judge and counsel engaged in another sidebar conference. Defense counsel stated that the juror should be removed because "to remain with him now is tainted" in that the jury panel "know[s] something is wrong" and no curative instruction would suffice to remedy the taint. The judge responded:
No[,] it's not tainted. The panel is not tainted. I'll give the defense a choice. The choice is to avoid any potential, replace the juror or I'm going to send the jurors back without giving a mistrial.
The prosecutor suggested that "any type of explanation they will get at a later time will obviously assuage any type of concerns[,]" and the judge asked defense counsel to make his choice. Defense counsel requested a two-minute recess.
The next transcript entry notes the jury's return to the courtroom. The judge told the panel:
. . . [W]e just had to do a little bit of an investigation and a clarification of a personal problem and just to make sure it wouldn't affect something so that's been resolved.
He asked the jury to continue its deliberations. The next recorded event was the rendition of the verdict.
Our analysis of the questions raised regarding the manner in which the trial court handled and resolved the juror conduct issue implicates some basic principles. Once jury deliberations have begun, empanelling an alternate juror in place of a participating juror may occur only where "a juror dies or is discharged by the court because of illness or other inability to continue[.]" R. 1:8-2(d)(1). Where a juror is unable to continue, the alternative to removal and replacement is the declaration of a mistrial and commencement of the proceedings anew.
In State v. Jenkins, 182 N.J. 112 (2004), the Supreme Court, while emphasizing that "[d]eclaring a mistrial imposes enormous costs on our judicial system," id. at 124, reiterated its view that the "inability to continue" standard protect[s] a defendant's right to a fair jury trial, forbidding juror substitution when a deliberating juror's removal is in any way related to the deliberative process. See State v. Williams, 171 N.J. 151, 163 (2002). A deliberating juror may not be discharged and replaced with an alternate unless the record "'adequately establish[es] that the juror suffers from an inability to function that is personal and unrelated to the juror's interaction with the other jury members.'" State v. Hightower, 146 N.J. 239, 254 (1996) (quoting State v. Valenzuela, 136 N.J. 458, 472-73 (1994)). [Id. at 125.]
The Court also noted:
Having an alternate substitute for a juror who has died or is ill does not pose a threat to the integrity or independence of the deliberative process. On the other hand, the "inability to continue" standard is necessarily vague because it is impossible to catalogue the myriad circumstances personal to a deliberating juror that may warrant her removal and substitution. [Id. at 124.]
To replace a deliberating juror, in addition to finding grounds that are personal to that juror, i.e., "unrelated to the juror's interaction with the other jury members[,]" State v. Hightower, supra, 146 N.J. at 254 (quoting State v. Valenzuela, 136 N.J. 458, 472-73 (1994)), the trial court must also find that the objectivity of the remaining jurors has not been tainted and that the jury's deliberations have not progressed to a point where a reconstituted jury could not fairly begin deliberations anew. See Jenkins, supra, 182 N.J. at 130-32.
In Jenkins, the Supreme Court addressed the issue of a deliberating juror's bias as a disqualifying factor, considering it to be in the category of personal unavailability as well as violation of the juror's oath, see id. at 127-28, as long as the trial court engaged in adequate effort to assure that the objectivity of the jury had not been impaired and that the deliberations had not progressed to a point where a reconstituted jury could not fairly begin deliberations anew. See id. at 130-32. See also State v. Williams, 377 N.J. Super. 130, 144-45 (App. Div.), certif. denied, 185 N.J. 297 (2005); State v. Holloway, 288 N.J. Super. 390, 404 (App. Div. 1996), overruled in part on other grounds, Jenkins, supra, 182 N.J. at 133 n. 2.
Emotional reactions that impinge upon the juror's ability to function have also been regarded as personal-factor grounds for disqualification, see State v. Miller, 76 N.J. 392, 401, 406-07 (1978), rev'd on other grounds sub nom., Miller v. Fenton, 474 U.S. 104, 106 S.Ct. 445, 88 L.Ed. 2d 405 (1985); State v. Trent, 157 N.J. Super. 231, 235, 240 (App. Div. 1978), rev'd on other grounds, 79 N.J. 251 (1979), as have instances of sufficiently dire individual financial hardship, see State v. Williams, 171 N.J. 151, 164 (2002).
Case law also emphasizes the impermissibility of removing a juror because the jury is unable to reach a unanimous verdict. See State v. Cruz, 330 N.J. Super. 274, 277-81 (App. Div. 2000); State v. Adams, 320 N.J. Super. 360, 368-69 (App. Div.), certif. denied, 161 N.J. 333 (1999); State v. Harvey, 318 N.J. Super. 167, 173-74 (App. Div. 1999); State v. Singleton, 290 N.J. Super. 336, 343-48 (App. Div. 1996)
Our research discloses no reported New Jersey case in which facts such as those before us were presented, i.e., where a juror's interaction with a defendant has been presented as a basis for removal and replacement. Such out-of-state cases as we have been able to identify provide, on the whole, little uniform guidance in resolving the issues before us here.
In State v. Bourrage, 175 S.W.3d 698 (Mo. Ct. App. 2005), a juror's conversation with the defendant resulted in the juror's disqualification rather than the declaration of a mistrial, a ruling affirmed on appeal. The lapse had occurred in an early stage of the proceeding, after the jury had been seated but not yet sworn. See also State v. Mack, 855 S.W.2d 457 (Mo. Ct. App. 1993).
Similar facts, also occurring before jury deliberations had actually begun, led to a different result in People v. Bigge, 297 N.W. 70 (Mich. 1941). There, after the jury had been sworn and during a lunch adjournment, the defendant and a juror were seen conversing in a stairway. The Michigan Supreme Court affirmed the grant of a mistrial on the basis that the conversation itself connoted a disqualifying prejudice.
In State v. Stankowski, 439 A.2d 918 (Conn. 1981), an extended conversation had occurred between the defendant and a juror during a lunch recess. The jury returned a guilty verdict and defendant moved for a new trial. The trial court denied the motion on the basis that the defendant had failed to make a showing that his right to an impartial jury had been violated. The Connecticut Supreme Court affirmed largely on the basis that defendant, by failing to raise the issue earlier, gambled on a favorable verdict and would not be heard to request a new trial when he received an unfavorable verdict.
The common thread running through these out-of-state cases may be seen to be the question whether a conversation between a sitting juror and a defendant created disqualifying prejudice, dealt with either by a mistrial ruling or by removal of the juror. In New Jersey, actual or potential juror or jury prejudice is not the only factor that determines whether a sitting juror should be or may be replaced. Our jurisprudence focuses, as well, on preserving the integrity of the jury as an independent decider of fact free of interference from the court or any other extraneous influence. Critical in the process is the need to employ procedural devices suited to determining the questions at hand.
Because of procedural lapses in the instant matter, we lack the confidence in the integrity of this jury's consideration of the issues of fact that would permit us to affirm the result reached at trial. The record made provided inadequate factual bases for determining whether the juror involved was unable, for a personal reason, to continue discharging his duties. In questioning the juror and others involved, the trial judge failed to develop adequately whether the juror's interaction with defendant, or his motivation in speaking with defendant at all, inhibited that juror's ability to decide the case solely on the evidence presented at trial. Even with the deference usually accorded a trial judge's credibility determination - typically made on the basis of sworn testimony - the judge's finding in this case that the juror's denial he had told defendant "it doesn't look good" was to be believed, the ruling that there was, consequently, no basis for a mistrial, was inadequately grounded. No determination of the presence or absence of some personal basis amounting to bias or other inability to continue had been made; the question whether the juror had in any way disregarded the court's instructions concerning juror conduct remained unaddressed; and, the trial court omitted to consider, on the record, the concomitantly critical question whether the jury's deliberations had proceeded beyond the point that an alternate juror could be substituted without impairing the fairness of the trial. As important, in attempting to resolve a disputed factual issue regarding juror communication with defendant, the trial judge proceeded, inappropriately, largely on the basis of unsworn statements; and, in making the ultimate ruling, the judge did not address the facial contradiction between the juror's first explanation (not under oath), which the juror characterized the incident as no conversation, it was more of an acknowledgement. He came by and I nodded my head but I didn't speak to [defendant] or have a conversation[,] and the juror's second explanation (under oath), in which he said:
The only things that were said yesterday when I saw him crossing the street was hello. He said something to me, I didn't even pay no mind. I said I can't speak to you and goodbye.
Appellate review of a trial court's decision whether to excuse and replace a juror, or whether to grant a mistrial, is governed by the abuse-of-discretion standard. State v. R.D., 169 N.J. 551, 560 (2001). A juror need not be excused, or a mistrial declared, when the judge makes an appropriately-based credibility determination regarding the facts offered as grounds for disqualification.
In every instance, the totality of a trial court's consideration of all the related questions bearing upon such a determination must inspire confident assessment that both the procedures used and the result attained were essentially unflawed. We lack that sense here.
Because we are constrained to reverse the convictions, we do not address the sentencing issues raised on appeal.
Reversed and remanded.
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