On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 04-02-0153.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges R. B. Coleman, Sabatino and Simonelli.
These back-to-back appeals involve the murder of Ramod "Lamet" Gilchrist on October 4, 2003. A grand jury indicted co-defendants Justin Scott, Damian Free and Herbert Mays, who are cousins, for first-degree murder, N.J.S.A. 2C:11-3a(1) and (2) (count one); first-degree robbery, N.J.S.A. 2C:15-1a(1) or (3) and N.J.S.A. 2C:2-6 (count two); third-degree possession of a weapon (knife) for an unlawful purpose, N.J.S.A. 2C:39-4d (count three); and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d (count four). The grand jury also indicted Scott and Free for third-degree*fn1 tampering with a witness, N.J.S.A. 2C:28-5(a)(1) and/or (2) and N.J.S.A. 2C:2-6 (counts five, six and seven). The State maintained that jealousy motivated the murder because Gilchrist was dating Zwwiyya Moore, the mother of Free's two children.
A jury acquitted defendants of murder, robbery, and witness tampering, and convicted them of the lesser included offense of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4a. Additionally, the jury convicted Scott and Mays, but acquitted Free, of the weapons offenses. The trial judge merged the weapons offenses into the aggravated manslaughter offense and sentenced each defendant to a thirty-year term of imprisonment with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. The judge also imposed the appropriate assessments and penalties.
On appeal, all three defendants challenge (1) the trial judge's substitution of a juror with an alternate juror after deliberations began, based on juror misconduct, instead of granting a mistrial; (2) the admission of certain statements made by Gilchrist as a dying declaration and an excited utterance; and (3) their sentences. Separately, Scott challenges the admission of evidence that he possessed the knife used in the attack on Gilchrist, and Scott and Free challenge the jury charge on flight. Mays challenges the trial judge's finding that he voluntarily waived his Miranda*fn2 rights. Mays also challenges the jury charge on accomplice liability, and the denial of his motion for acquittal on the murder charge. Because we conclude that the trial judge should have granted a mistrial due to juror misconduct, we are constrained to reverse and remand for a new trial on the charges that resulted in convictions.
The following relevant facts are adduced from pre-trial and trial testimony. Moore had a dating relationship with Free "off and on" for seven years. Gilchrist had been Moore's boyfriend "[f]or like three years off and on" and they had been together exclusively as of October 4, 2003.
Latonya Jackson knew Gilchrist for the period he dated Moore. She had known Free and Scott for about ten years and Mays for a few years less than that. According to Jackson, at 8:30 p.m., on October 4, 2003, she was at her apartment in the Alabama Housing Projects (AHP) in Paterson with Gilchrist and other friends, including Diamond Free (Diamond). Diamond is Free's brother and Scott's and Mays's cousin. The group was drinking alcohol and playing cards. According to Moore, Gilchrist was wearing a Yankees cap and a gold chain with "a Jesus head" on it that he wore everyday, which cost approximately $1500.
Jackson continued that at one point, Free and Scott came into her apartment and went into her bathroom with Diamond to talk. According to Diamond, Free asked him questions about what Gilchrist was "doing with" Moore. Because Free "did not go with [Moore] no more" and because Free already had a new girlfriend, Diamond replied to Free, "just leave that alone, it's over with." Jackson said that as Free and Scott left her apartment, Scott raised his shirt to show Gilchrist the handle of a knife he was carrying but said nothing to Gilchrist. Jackson saw a leather case with a knife inside it that had a black handle with a "little grip thing." She did not see the blade. She testified that the knife she saw that night was similar to the replica knife the State used as an exhibit at trial.
Diamond testified that after Scott and Free left Jackson's apartment, he left "[r]ight away" to get Mays. After finding Mays, Diamond said to him, "if they thinking about doing something stupid, don't get involved because it wasn't worth it." Mays said he wasn't "gonna do nothing." The two men then went downstairs and met Free and Scott in the first floor hallway. Diamond saw Mays pull a black-handled knife from his front pocket and say, "Yo, come on, I'm ready to do this now." Diamond told Mays to "chill." Mays then put the knife back in his front pocket.
Gilchrist left Jackson's apartment after Scott and Free had left. He saw the men in the hallway and continued heading in their direction. No one said anything to Gilchrist right away. According to Diamond, as Gilchrist approached the men, Diamond noticed that Scott "had his hand on his back pocket" grabbing for "the end of the knife" in his pocket. Diamond did not see the blade of the knife but he "recognized that knife as being a knife [he] had seen [Scott] with on other occasions." Diamond grabbed Scott's arm, but Scott pushed him away saying either "get off," or "[g]et out, move out the way." Diamond said, "yo, chill," and then "hopped on the elevator" because he "wanted to get help." At some point from inside the elevator, Diamond heard Free say to Gilchrist, "[w]hat's going on between you and my babies' mother?" Gilchrist replied, "[w]hy you can't ask me outside, and why do you have to ask me in front of your boys."
When Diamond reached the third floor, he heard Free say to Gilchrist, "[i]f you run, I'll kill you."
Diamond went to another apartment and said to those inside, "[y]o, come downstairs right now. I think that they did something to [Gilchrist]. Come on, hurry up. Come, we have to go help him." Adrian Tuck, a resident of the AHP and the boyfriend of Cameen Free,*fn3 was in the apartment with other friends and family members when Diamond "busted in the door." According to Tuck, Diamond was stuttering and "talking real fast and real loud." Diamond said, "[c]ome break up the fight between Ramod Gilchrist and Damien Free." Diamond and Tuck ran down the stairs, arriving at around 9:15 p.m. No one was in the hallway, but Diamond saw on the floor a Yankees cap like the one Gilchrist was wearing that night.
Tuck testified that he and Diamond walked outside the front of the building and looked in "[b]oth directions." They remained outside for about five minutes but did not see Gilchrist or any of the defendants. They also looked down in the basement of building three for two or three minutes. After not seeing anyone, they returned to the apartment.
According to Jackson, Gilchrist called her about three or four minutes after he left her apartment and said, "come get me." The phone was then disconnected. Jackson called back "[i]mmediately" and Gilchrist again asked her to come get him, that he was "outside in between the buildings" and that "'Damien and them stabbed me,'" which he repeated "[a] couple of times." Gilchrist's voice was "dragging a little bit" and he sounded "weak, like he was tired." Jackson kept him on the phone while she ran outside to find him.
Jackson also testified that Gilchrist did not know Scott "by name" and she did not ask Gilchrist who he meant by "them" when he told her on the phone that "Damien and them stabbed me." She also said that after finding Gilchrist, she stood as close as "right over the top of him" and heard him repeat three to five times that "Damien and them stabbed me."
Diamond testified that after he ran outside, he found Jackson but they did not see Gilchrist. After Jackson told him about the phone call, the two went to find Moore. Moore testified that she was at Juanita Dunn's apartment when Jackson and Diamond "bust in the door[,]" they looked "[l]ike shocked like or scared like" and said, "[h]elp us find [Gilchrist]. Damien had stabbed him." They then went to the parking lot area by building five where they saw police and medical personnel.
Officer Jose Valentin of the Paterson Police Department testified that he was the first officer to arrive on the scene. When he arrived, he saw "a crowd" of five to ten people standing at the scene, and a man "laying on the ground" "bleeding heavily from the T-shirt that he was wearing underneath a green leather Army coat." The officer tried to "get as much information as [he] could, not knowing whether [the victim] was going to make it or not." The victim was "going in and out of consciousness," his eyes were "kind of squinting," and he was having trouble speaking because "he was in agony and pain." The victim was not able to respond to questions about who stabbed him; he only told the officer that his name was Ramod and that the incident happened in building three.
Valentin continued that he spoke to Jackson at the scene and she "seemed overly excited" and "had alcohol protruding from her breath." He felt that Jackson "appeared to be intoxicated, but she knew what she had been saying." Jackson testified that she was not intoxicated when she spoke to the police that night.
Detective Akram Abdellatif, the lead detective, testified that he spoke to Jackson and Moore separately at the scene. He did not detect the odor of alcohol on Jackson's breath or observe her being "under the influence" of alcohol or other "type of substance."
Officer Frank Belton testified that he was also dispatched to the scene and that other officers and medical personnel were there when he arrived. He saw blood on Gilchrist's "jacket area" and that Gilchrist appeared to "be conscious but in a lot of pain." During the ten-minute period after Belton arrived on the scene, he did not hear Gilchrist say anything.
Jackson testified that police and paramedics surrounded Gilchrist. She saw "a lot" of blood around Gilchrist's stomach area. Gilchrist's voice was "kind of low" and Jackson thought he was going to die because she had never seen that much blood. She also testified that Gilchrist was not wearing his gold chain.
Moore testified that she saw Gilchrist "laying down in the bushes" and went right up to the yellow crime scene tape and stood about four to six feet from him. Jackson, Diamond, and Dunn were with her until an ambulance took Gilchrist away. Moore did not see Gilchrist's injuries until the paramedics cut away his shirt. She described the wounds as "deep, and like you could see some of his meat out of him." Moore heard one of the police officers ask Gilchrist if he knew who stabbed him. She heard Gilchrist respond, "Damien," "Damien did it."
Desiree Griffin, an E.M.S. worker with the Paterson Fire Department who treated Gilchrist in the ambulance, testified as an expert witness in emergency medical services. Griffin noted that Gilchrist had sustained several stab wounds to his right arm, abdomen, and the area right below the breastbone; and that a "trauma dressing" was used because of the heavy bleeding. During treatment, Gilchrist's blood pressure was dropping and his heart rate was increasing, indicating significant blood loss. Griffin also administered oxygen to Gilchrist. She testified that she "would assume that any stab wound to the torso would be life threatening" because "[t]here's vital organs there." She opined that Gilchrist sustained life threatening injuries, especially to his torso.
Griffin also testified that she heard Gilchrist talk to the police during treatment and mentioned "names" but she did not recall what he said or what names he used. She said that although Gilchrist was wearing an oxygen mask that covered his mouth and nose at the time, the mask would not muffle his voice, and that "[y]ou can speak and we can understand with a mask on." During treatment, Griffin reassured Gilchrist and did not mention his chances of survival.
Joanne Thompson, an emergency medical technician and paramedic who also treated Gilchrist in the ambulance, testified as an expert in advanced life support. Thompson noted that Gilchrist was "alert and oriented times three," which means that he was able to talk and was aware of everything that happened. Gilchrist was administered "100 percent oxygen" using a "non re-breather which is a face mask with a reservoir bag." No medication was administered during transport. Thompson also described the various "dressings" and care provided to Gilchrist before he reached the hospital.
Upon arriving at the hospital, Gilchrist was rushed into the trauma room area. According to hospital records, he was responsive, oriented, and conscious at the time of treatment. Belton testified that he saw Gilchrist within ten minutes of his arrival at the hospital, and also saw eight or nine individuals treating him. Belton observed "a couple of stab wounds in [Gilchrist's] stomach area." Gilchrist also "appeared to be in severe pain with his face frowning," and his "eyes opening and closing."
Belton asked Gilchrist his name and who stabbed him. According to Belton, Gilchrist said three times that "Damian Freeman" stabbed him, that there were "three other guys there[,]" and that one of them took his gold chain. Belton had to lean down to less than an inch from Gilchrist in order to hear him because he was speaking in a "low tone." Based on his experience with stomach injuries, Belton believed that Gilchrist's injuries were severe. He testified that an individual, who he believed was a doctor, said that abdomen wound was "life-threatening" and that Gilchrist was ten to fifteen feet away when this individual made the statement. Gilchrist was taken to the operating room, where he died during surgery. The medical examiner's report listed the cause of death as "[m]ultiple stab wounds" and the manner of death as "[h]omicide."
Dr. Chase Blanchard, an associate medical examiner, testified as an expert in forensic, anatomy, and clinical pathology. Dr. Blanchard described that the "paired defects" on Gilchrist's clothing corresponded to the wounds on his right forearm. The doctor opined that two of the paired wounds were caused by "a paired or double blade [knife] with a space in between the blade of a quarter of an inch" and that the various stab wounds to the abdomen were "life-threatening" injuries. In total, the doctor noted eight stab wounds but cautioned that some of the "paired wounds" could be two separate wounds or one wound. To a reasonable degree of medical certainty, the doctor concluded that at least two separate knives were used in the attack on Gilchrist, that the double-bladed knife caused the wounds on his right forearm, and that the single-bladed knife caused most of the other wounds.
We first address defendants' contentions relating to juror misconduct. Because of the consequences of our decision on this issue, we detail what occurred.
Before deliberations began, the judge spoke in chambers to juror number fourteen (juror 14) because he noticed that she was leaning forward in the jury box, she appeared to be crying or sobbing and another juror was comforting her. Juror 14 apologized and said that she was "just a little anxious" but was "able to proceed" and felt "well enough to deliberate." Having previously observed juror 14 leave the courtroom numerous times with obvious back pain, and having observed her using a heating pad during the trial, the judge also asked if she was in pain. The juror responded, "No."
The State requested juror 14's removal due to her anxiety. Free's counsel agreed. Scott's and Mays's counsel saw no grounds for removal. The judge did not remove the juror at that point because of his understanding of case law on the issue of replacing a deliberating juror, and because the juror had not expressed a desire not to deliberate.
The next day, after deliberations began, Mays' counsel reported to the judge that during a break, he saw juror 14 leave the jury room and that her "eyes were swollen, her face was red, indicating [that] she was crying." The judge accepted counsel's representations but, without more, decided not to "put any added pressure upon [juror 14]" by asking her how she was doing.
After a weekend break, the judge reported to counsel that juror number two (juror 2), the foreperson, left a message in chambers over the weekend, which he played for counsel. After hearing the message, Free's counsel argued that the entire panel was tainted. The judge then summarized the message on the record as follows:
But in effect she said I'm nervous; I'm not sure if I should be calling you; it's Saturday morning at 10:30 a.m. and I want to tell you that I need to step down, I don't want to serve on the jury anymore due to some of the actions taken by another juror prior to the commencement of deliberations. So she's saying there's a juror who did something before the deliberations began.
She went on to say we have all invested a lot of time, but I cannot continue to deliberate with people who may have taken these actions. She said she wasn't sure if it was the right thing to call me or not, but she felt she had to tell me. She said it has nothing to do with differences of opinions. She says it's just that I don't feel I should be deliberating with jurors where these actions have been taken.
The judge also advised counsel that he called juror 2, instructed her to report on Monday, and asked her which juror she referred to in her message. The juror 2 said she was referring to juror 14.
On Monday, juror 2 reported under oath that that juror 14 said that she went on the internet and looked up defendants' and the victim's names and what defendants' sentence would be if they were convicted. Juror 2 also reported that juror 14 said before the start of deliberations, that "I can tell you right now what . . . my verdict is" and she held up a piece of paper with her verdict written on it. Juror 2 also saw juror 14 reading a newspaper in the jury room and then she hid it. Juror 2 did not hear juror 14 tell anyone what she had learned from the internet or the newspaper. Juror 2 stated that she could still be "a fair and impartial juror" and was willing to continue deliberating.
The judge was most concerned that juror 14 had violated her oath and his instructions by looking up information on the internet. He calculated that the jury had been deliberating for about two-and-a-half hours at that point. Free's counsel continued to argue that the entire panel was tainted.
Under oath, juror 14 denied looking up information on the internet. She admitted reading a headline in the newspaper about the case, but not the article itself. She also admitted to holding up a piece of paper with "something written on it" but claimed that she was "told to" do that "specific thing."
The State again requested juror 14's removal. Scott's counsel found the situation problematic but did not request a mistrial. After a lengthy discussion with counsel about how to proceed, the judge decided to voir dire the entire jury panel. All counsel agreed to a "very limited" voir dire "just to make sure nothing occurred that would prevent [the panel] from going on and being fair and impartial[.]"
The judge then questioned each juror under oath about whether "anything occur[ed] which in [his or her] opinion has infected or affected [his or her] thinking so that [he or she] could not be able to reach a fair and impartial verdict in this case based on the facts and law[,]" and whether he or she could continue deliberating. All jurors said that they could continue to deliberate and be impartial.
When specifically asked if a juror said something about researching the internet, jurors number four (juror 4), five (juror 5), eight (juror 8) and twelve (juror 12) confirmed that juror 14 said either that she knew you could obtain, or that she had obtained information about the case on the internet. Jurors 4, 5, and 12 did not hear juror 14 say what she learned from her internet search; however, juror 8 heard juror 14 say that "you can get 30 years to life." Juror number six (juror 6) heard someone, but he did not remember who, say that you could go on a website to read about the case; however, this juror "followed [the court's] instructions" and did not do so. Other jurors said that they did not hear anything.
After this initial questioning, the judge found that, of the ten other deliberating jurors, none had expressed a problem with continuing to deliberate, that they did not feel well, or that anything occurred that would prevent them from being fair and impartial. The judge saw no need to further question juror 8, who heard about the possible thirty-year sentence. Instead, he decided to give a curative instruction.
The State continued to press for juror 14's removal. Scott's counsel took no specific position but argued that if the judge removed juror 14, he should remove juror 2 as well. Free's counsel agreed with juror 14's removal but again requested a mistrial, claiming the entire jury was tainted. Mays' counsel requested a mistrial.
The judge found juror 2 credible and determined that juror 14 violated his instructions. The judge would have permitted juror 14 to continue if she had admitted to what she had done; however, he decided to remove her and replace her with an alternate because she disregarded and violated his instructions, because she tried to pass the outside information she obtained to other jurors, and because she lied under oath. When combined with her emotional reactions during and after the trial, and based on the totality of the circumstances, the judge concluded that juror 14 could no longer be fair and impartial. He also denied a mistrial, concluding that the rest of the panel showed no evidence of taint.
The judge then instructed the remaining jurors about their obligation to render a fair and impartial verdict. He also advised them of juror 14's removal, added one of the alternate jurors to the deliberating panel, and instructed the newly configured jury panel to begin their deliberations anew. The reconstituted jury then rendered their verdict several days later.
Defendants contend that the judge erred in substituting juror 14 with an alternate juror after deliberations began, and should have declared a mistrial. Separately, Free contends that the integrity of the deliberative process was compromised; Scott contends that he was deprived of his right to an impartial jury; and Mays contends that it is improper to remove a deliberating juror when the removal is in any way related to the deliberative process.
The State counters that the judge took appropriate remedial measures to ensure defendants' right to a fair and impartial verdict; that it was within the judge's discretion to deny a mistrial; that the judge voir dired the entire panel and avoided any questions that would reveal the status of the deliberations, which had not yet proceeded too far; that the judge removed juror 14 after the voir dire revealed that she had lied under oath; and that there was no juror taint as evidenced by the fact that the jury acquitted defendants of the most serious charges of murder, robbery and witness tampering.
The Sixth Amendment of the United States Constitution and Article I, paragraph 10 of the New Jersey Constitution "ensure that 'everyone charged with [a] crime has an absolute constitutional right to a fair trial in an atmosphere of judicial calm, before an impartial judge and an unprejudiced jury.'" State v. Tyler, 176 N.J. 171, 181 (2003) (quoting State v. Marchand, 31 N.J. 223, 232 (1959)). "Trial judges in their gatekeeping role have a duty 'to take all appropriate measures to ensure the fair and proper administration of a criminal trial,' including 'preserv[ing] the jury's impartiality throughout the trial process.'" Ibid. (quoting State v. Williams, 93 N.J. 39, 62 (1983)). "If juror bias is discovered or the jury's deliberations have been tainted by the introduction ...