March 2, 2010
STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
JAMAL R. TAYLOR, DEFENDANT-RESPONDENT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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." The judge concluded his decision by stating:
Even though the juror testified that the information was not shared with other jurors and I did find [S.W.] credible, his comments about defense attorneys indicated a tendency to influence at least his own decision if not the rest of the jury. [Defense counsel] would have been able to exercise a challenge if [S.W.] had properly responded to the questioning during voir dire about his predisposition, his bias toward criminal defense attorneys. She was unable to do that because he didn't disclose it.
In my view, a taint was possible here and this is an appropriate circumstance that warrants the granting of a motion for a new trial which obviously is an extraordinary remedy.
We begin our analysis by noting our standard of review. Under Rule 3:20-1, "[t]he trial judge on defendant's motion may grant the defendant a new trial if required in the interest of justice." "Motions for new a trial 'are addressed to the sound discretion of the court; and the exercise of the discretion will not be interfered with on appeal unless a clear abuse of it is shown.'" State v. Levitt, 36 N.J. 266, 272 (1961) (quoting State v. Smith, 29 N.J. 561, 573, cert. denied, 361 U.S. 861, 80 S.Ct. 120, 4 L.Ed. 2d 103 (1959)); see also State v. Thompson, 142 N.J. Super. 274, 282 (App. Div. 1976).
The decision to grant a new trial based on jury taint resides in the discretion of the trial court, but... "if 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." [State v. R.D., 169 N.J. 551, 558 (2001) (quoting Panko v. Flintkote Co., 7 N.J. 55, 61 (1951)).]
One of the bases for granting a motion for a new trial is the omission or falsification of material information by a juror during voir dire that "had the potential to be prejudicial" and if disclosed, would have given counsel a reasonable basis to exercise a peremptory challenge to exclude the juror. State v. Cooper, 151 N.J. 326, 349 (1997), cert. denied, 528 U.S. 1084, 120 S.Ct. 809, 145 L.Ed. 2d 681 (2000); see, e.g., In re Kozlov, 79 N.J. 232, 239 (1979); Wright v. Bernstein, 23 N.J. 284, 293-96 (1957); State v. Bianco, 391 N.J. Super. 509, 521-22 (App. Div.), certif. denied, 192 N.J. 74 (2007); State v. Scher, 278 N.J. Super. 249, 262-68 (App. Div. 1994), certif. denied, 140 N.J. 276 (1995).
Where a juror on voir dire fails to disclose potentially prejudicial material... a party may be regarded as having been denied a fair trial. This is not necessarily because of any actual or provable prejudice to his case attributable to such juror, but rather because of his loss, by reason of that failure of disclosure, of the opportunity to have excused the juror by appropriate challenge, thus assuring with maximum possible certainty that he be judged fairly by an impartial jury. [Cooper, supra, 151 N.J. at 349 (internal citations and quotations omitted).]
Here, we agree with the trial court that S.W.'s bias or hostility against either this particular defense counsel, or criminal defense attorneys as a class, if disclosed during voir dire, would have most likely resulted in his exclusion from this jury panel based on counsel's exercise of one of her preemptory challenges. Indeed, such bias would have constituted sufficient grounds to excuse S.W. for cause.
We reject the State's argument that the trial court erred in failing to interrogate the other eleven jurors to ascertain whether S.W.'s bias tainted the entire jury. This argument ignores defendant's constitutional right to a fair and impartial jury, which requires that all twelve jurors adhere to their oath to scrupulously follow the court's instructions on the law and to base their ultimate judgment only on the evidence presented in court.
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