On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 93-04-1390.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 18, 2010
Before Judges Grall and LeWinn.
Tried to a jury in 1994, defendant was convicted of felony murder and related robbery, assault and weapons offenses stemming from a homicide in January 1993, in which defendant was charged as an accomplice. N.J.S.A. 2C:2-6. On July 29, 1994, defendant was sentenced to an aggregate term of life plus twenty years with a forty-year parole ineligibility period. We affirmed his conviction, and the Supreme Court denied certification. State v. Florence, No. A-6493-93 (App. Div. February 10, 1997), certif. denied, 149 N.J. 410 (1997).
On December 2, 2006, Anna Gordon, who had served as a juror at defendant's trial, sent a letter to the Office of the Public Defender expressing some reservations about the verdict. Noting that her decision to find defendant guilty "was not a clear-cut decision," Gordon added:
What has not set well with me for all these years is that one of the jurors said he knew "the word on the street." He or his children knew some of [defendant's] peers and claimed they were all saying that [defendant] was there. At the time I felt this was inappropriate, so I tried not to let it cloud my judgment. In reality I don't know if I was able to keep it out of my thoughts during deliberation. I don't know if this juror spoke of this to other jurors as well, but certainly he himself was influenced by what he heard. So, at least two of us were potentially prejudiced.
Gordon stated that she "wondered if [her] conscience is troubled because [she does] not agree with the law of accomplice liability that forced [the jury] to find [defendant] guilty of murder even though he did not kill anyone." Concluding that it was "not up to [her] to determine how the misconduct of a fellow juror should be handled," Gordon stated that she was "handing it over to the proper authorities within the system . . . to determine whether under these circumstances [defendant] received a fair trial."
Pursuant to defendant's motion, the trial judge conducted a voir dire of Gordon on April 17, 2007. Gordon stated that "within six months of the trial" she called defendant's attorney and "left a message with someone in his office." When the attorney returned her call, he "got [her] answering machine. And [she] chose not to call him back at that time. [She] decided to just let the whole thing drop." Gordon stated that it was "just a matter of conscience for [her], and [she] wanted to ask [the attorney] some questions about the defendant so [she] could rest easier about the decision [the jury] had made."
Approximately one year before she wrote her letter, Gordon again telephoned the trial attorney; this time she spoke to him. She "explained to him why this has been bothering [her] for all these years, which is mainly just perhaps an overscrupulous conscience, but that [she] thought he might be able to put [her] mind at ease." Gordon also told the attorney that she "was really unclear about whether some things that went on during the deliberations were proper," namely that one of the jurors told her that "he, his children, or friends of his children or something, knew what the word on the street was . . . that [defendant] was present at the one robbery where the murder occurred." According to Gordon, the attorney advised her that if she had "said something about that at the time, . . . they probably would have said it was a mistrial."
Gordon stated that advising the trial attorney about her fellow juror's comment was not her "main reason for contacting him. Mainly, [she] wanted to know something about the character of [defendant]," and hoped the attorney "could tell [her] about [defendant] that [sic] would make it more clear that he was guilty and a bad bloke." The attorney suggested to Gordon that she contact the Office of the Public Defender.
Gordon testified that the juror made the comment during deliberations; she recalled that he was male, and she was "pretty confident" that he was African-American; she could not, however, recall his name. Nor could Gordon recall the names of any of the other trial jurors.
Gordon stated that the information was "conveyed" to her in the presence of other jurors, but "it was [at] a time when just [the juror] and [Gordon] were talking." The other jurors "were talking amongst themselves" at that time. Gordon could not recall how close the other jurors were to her when she had this discussion. When asked if another juror could have heard the communication, she said she thought "someone could have or could not have. It wasn't whispered, but [she did not] really think anybody was listening to what he and [she] were talking about at the time. But whether he said that to anybody else, [she had] no way of knowing." The juror did not "indicate" to Gordon whether he had "said or conveyed the same information to anyone else[.]" Nor did Gordon inquire whether he had done so. No other jurors "indicate[d] that they were privy to that communication[.]" Gordon added that the juror made his comment to her "towards the end of [the jury's] deliberations."
When asked about the statement in her letter that she did not "agree with the law of accomplice liability," Gordon stated that the charge "troubled" her because she thinks "there could be a big difference between somebody who holds people up ...