On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 07-02-0311.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman and Ashrafi.
Following unsuccessful motions to suppress evidence and then a jury trial, defendant Vincent Shelton was found guilty of second-degree possession of a controlled dangerous substance with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(2); third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10a(1); and second-degree possession of a weapon by a convicted felon, N.J.S.A. 2C:39-7b. He was acquitted of second-degree possession of a firearm while engaged in certain drug activity, N.J.S.A. 2C:39-4.1a. The trial judge sentenced defendant to an aggregate term of seven years imprisonment with five years of parole ineligibility.
On appeal, defendant asserts that the reconstituting of the jury after substituting a juror rather than declaring a mistrial was plain error and requires reversal. He also claims that the judge erred in denying his motion to suppress. We conclude that the substitution of the juror should have resulted in a mistrial rather than a reconstitution of the jury with continued deliberations. We further conclude that the judge did not err in denying the motion to suppress. We reverse the conviction and remand for a new trial.
These are the relevant facts adduced both at the motion to suppress and the trial. On December 27, 2005, at 2:18 p.m., Emergency 911 Dispatcher Robert Frandsen received a call from a female at a residence on Amherst Road in South Toms River reporting a possible fire on the premises. The dispatcher immediately dispatched both police and fire personnel to the scene to investigate. Firefighter and former chief, Joseph Jubert, responded to the residence and was advised by various individuals standing outside the residence that they had smelled something burning inside the house but saw no flames. Suspecting an electrical fire, Jubert began checking for heat sources using a thermal imaging camera, which revealed that the source of the fire was from the heating duct work, including the furnace and circuit breakers located in the basement. Upon entering the basement, the firefighters proceeded to do a systematic search in the basement, where the furnace was located on one side of the basement, and a living room and bedroom area on the other side. During the course of this investigation, Jubert noted in the living room a white powdery substance on a coffee table that had scratch and cut marks in it. He also spotted plastic bags in an open dresser drawer in the adjoining bedroom.
After viewing the white powder on the coffee table, Jubert contacted the sheriff's department which brought South Toms River Police Officer Timothy Meier to the basement at the residence, where he too observed the suspected CDS and summoned Detective David Burke to the scene. Detective Burke, an officer for over fifteen years, upon entry to the basement, observed "on the coffee table a large white powder, or substance . . . [with] chop marks in it, like it was being cut up." Based on his observations and suspicion that the white powder was cocaine, he thereafter applied for a search warrant by submitting his affidavit via facsimile to the municipal judge.
The judge then faxed back to Detective Burke a signed search warrant. The judge and Detective Burke then met, and the judge executed a duplicate search warrant.
After obtaining the search warrant, Burke photographed, field-tested,*fn1 then bagged the substance for further examination and searched the rest of the basement where he found plastic baggies with corners missing, a scale, a .357 revolver (hidden in male underwear in a lower dresser drawer) and bullets on and in a dresser in the bedroom adjacent to the living room. Located on the top of the dresser were documents belonging to defendant, including his identification. Additionally, a search of the basement stairwell uncovered glassine bags and bullets within a man's sneakers.
At trial, the State's expert, Lieutenant Joseph Vitiello opined that the thirty-one grams of cocaine found on the coffee table were for the purpose of distribution and the presence of a scale, a gun, and plastic baggies with corners missing supported that opinion.
At the conclusion of presentation of the evidence, the matter was submitted to the jury. Deliberations began on February 6 at approximately 11:45 a.m. and continued until 4:30 p.m. except for a luncheon recess and a short break when the judge answered the jury's question about the relationship of the amount of CDS seized and intent to distribute. Deliberations resumed the following morning, only stopping briefly to address an error in the marking of an exhibit and proceeded into the afternoon following a lunch break. That afternoon, the jury deliberated for ninety minutes before informing the judge that agreements had been reached as to one charge but not the remaining two. The judge chose not to take a partial verdict at that time, instructing the jury to continue. Thereafter, deliberations continued for forty-five more minutes, until the jury was given requested instructions and dismissed for the day.
Deliberations continued the next morning and were interrupted several times with the jury's repeated requests for read-back of witness testimony. After the final read-back, Juror No. 11 advised the judge for the first time that he had recently remembered an incident from many years earlier in which a police officer had planted evidence, and a different officer he knew had gone undercover to catch the rogue officer. The juror believed his recollection rendered him unable to make a fair decision.
After an extended voir dire of the juror, the trial judge then excused the juror, and in ensuring that Juror No. 11 did not share any information with the others "given the fact that [they] ha[d] deliberated over a number of days," questioned the jurors individually, but each juror denied any knowledge of Juror No. 11's issue. An alternate juror was then selected, and the reconstituted jury was told to start anew, with the trial court instructing in part, "You must throw [your prior deliberations] out and start over again from scratch, okay, because [the alternate juror] did not participate in any of your deliberations up until this point." The judge noted:
And since what started out to be a partial verdict yesterday, and it was not taken by the Court because it was not complete, is also thrown out. Whatever the verdict was with regard to that third count, whatever that unanimous decision was . . . one of the jurors that participated in that decision is no longer here, and so that's also void and out.
Additionally, the judge instructed the jury in accordance with the model jury instructions on the matter. Neither the prosecutor nor defense counsel requested a mistrial or questioned the judge's determination to allow the reconstituted jury to continue its deliberations.
After the jury was reconstituted, the jury deliberated for over an hour and a half that day prior to being dismissed, continuing deliberations on February 11 with only brief interruptions, and continued into the day on February 13. That day, the deliberations broke briefly for jury questions, before the jury returned a verdict finding defendant guilty of two counts of the indictment but deadlocked on an additional count as to both defendant and his co-defendant. Trial on the charge of a felon in possession of a weapon commenced immediately thereafter, based on a prior conviction in New York, and a guilty verdict was delivered the same day.
In denying defendant's motion for a new trial, the motion judge noted:
The "new jury" as you call it continued to deliberate on Monday, Tuesday and Wednesday. On Wednesday at approximately 4:30 the jury advised they had reached a partial verdict, and that was the verdict that was received. That means by a partial verdict you mean they were hung on Count 1 and the other counts had been resolved.
So under all of the circumstances that are involved, while I, I have read the Jenkins case carefully, I cannot find that, that this jury under the circumstances of this case did not take upon itself its obligation fairly and impartially to consider all of the evidence as a newly constituted jury; approach it . . . with a renewed spirit and renewed energy; that, that comes with, with the constitution of a new jury. I believe they faced the challenges that they had. They clearly did not rush the verdict on any count and, indeed, could not reach a verdict on, on one of the counts indicating to the Court that there was no overbearing, there was no exercise of extraordinary control by any of the parties against the alternate. So under all of those circumstances I find that the jury acted properly and proceeded properly in this case to come to their decisions.
She denied the motion for a new trial, and this ...