On appeal from Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 05-06-831-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 27, 2009
Before Judges Skillman and Fuentes.
By leave granted, the State appeals from the order of the Law Division, Criminal Part granting defendant Jamal R. Taylor's motion for a new trial based on alleged misconduct by one of the jurors who deliberated and rendered a verdict in this case. After reviewing the record before us, we affirm.
Defendant was tried in absentia before a jury on December 14, 19, and 20, 2006. On the last day of trial, the jury returned a verdict finding defendant guilty of third-degree possession of cocaine, in violation of N.J.S.A. 2C:35-10(a)(1). The State presented all of its testimonial evidence on December 19, 2006; Burlington City Police Officer John Fine was one of the witnesses who testified for the State. Closing arguments were scheduled to take place on December 20, 2006, at 9:30 a.m.
The incident of juror misconduct was disclosed to the prosecutor by a detective in his office. The prosecutor reported it to the trial judge thereafter, who in turn conducted a hearing, pursuant to N.J.R.E. 104 and Rule 1:16-1, to ascertain what had actually occurred. The following factual recitation is derived from the testimony presented at that hearing.
Shortly before the case was scheduled to resume on December 20, 2006, Fine, who had been asked to attend the proceedings by the prosecutor, entered the courthouse elevator on his way to the courtroom. Also inside the elevator was S.W., a juror in the case who recognized and acknowledged Fine and said "you did fine." According to S.W., he then stated that "the defense lawyer was kind of crazy." Fine remembers S.W. actually saying that "defense attorneys can be assholes."
Fine felt uneasy and "caught off guard" by the comment. Because he recognized S.W. as a juror in the case, Fine said he responded by saying "well, you know, I can't really take it personal." S.W. responded by saying "I know, I know," while putting his hands up. The elevator door then opened and both men exited without saying anything else.
According to Fine, upon entering the courtroom, and before the lawyers began closing arguments, he reported the incident to Detective Kristine Painter of the Burlington County Prosecutor's Office. Painter testified that Fine told her the juror said "something about defense attorneys being asses. Acting like assholes." Believing the incident to have been innocuous, Painter did not inform the prosecutor at that point.
The trial continued with closing arguments and jury charges; after a period of deliberation, the jury returned a guilty verdict at about 12:25 p.m. Painter informed the assistant prosecutor assigned to the case of the incident over lunch that same afternoon. At approximately 3:30 p.m., the prosecutor informed the trial judge of the contact between Fine and the juror. Painter, who had spoken to Fine to confirm the details of the incident, also related the content of the communications to the judge.
The trial court conducted a hearing pursuant to N.J.R.E. 104 and Rule 1:16-1 on January 4, 2007. S.W. testified that he did not discuss the comments he made to Fine with any other members of the jury, either before or during deliberations. S.W. also claimed that he did not discuss his assessment of Fine's testimony or his opinion of the defense attorney with his fellow jurors during deliberations. According to S.W., his comments to Fine played no role in the jury's deliberations. Although the trial judge found S.W.'s testimony credible, he found no reason to interrogate the remaining eleven jurors.
Against this record, the trial court granted defendant's motion for a mistrial and vacated the jury's verdict against him. The court found S.W's comments, and the points of view expressed therein, had the capacity of undermining the reliability of the jury's verdict. Specifically, the comments "you did fine" and either "the defense lawyer was kind of crazy" or "defense attorneys can be assholes" revealed that S.W. had "a preconceived notion about criminal defense attorneys, a bias, a predisposition that certainly should have been revealed during voir dire." The court noted that by praising Fine's performance as a witness, S.W. failed to follow the court's instructions to refrain from forming any opinions or reaching any judgment about the evidence until after the case had concluded and the jury had been charged on the law.
According to the trial judge, the comments concerning defense counsel, or defense attorneys as a class, "are deemed to be prejudicial thus influencing the verdict." ...