November 7, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
AMIR A. ANDREWS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 07-02-0441.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 13, 2011
Before Judges Fuentes, Harris, and Koblitz.
Defendant Amir A. Andrews appeals from a judgment of conviction that was entered after two sequential jury trials. In the first trial, Andrews was convicted of second-degree witness tampering, but the jury was deadlocked on the remaining eight counts of the indictment. At the second trial, Andrews was found guilty of the unresolved charges in the indictment, including two counts of attempted murder. The trial court imposed an aggregate sentence of life imprisonment plus twenty years, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. In this appeal, defendant contends that the jury verdict in the second trial was obtained in violation of State v. Gilmore, 103 N.J. 508 (1986), and its progeny. He asserts that the trial court, having found that the defense attorney misused his peremptory challenges, was obliged to discharge the jury panel and commence jury selection anew. Instead, the court seated -- over Andrews's vehement objection -- the last juror who defense counsel sought to excuse. We agree that jury selection was fundamentally flawed, thereby leading us to lack confidence in the verdict and directing us to find the conviction of the charges tried in the second trial as unsustainable. We reverse and remand for a new trial.
The following facts are derived from the record, which we summarize solely as background to the jury selection process. According to the indictment, on October 3, 2006, Andrews and an unidentified, unindicted co-conspirator agreed to murder two individuals. The result of that conspiracy was the non-fatal shooting of the two victims with an illegal firearm.*fn1
The trial commenced in the conventional fashion. A jury venire was seated in the courtroom and individual prospective jurors were questioned by the court about their abilities to serve as fair and impartial triers of facts. Within a few hours of commencing that process, a panel of fourteen individuals was assembled. The court explained to the panel and the remaining members of the venire the practice of exercising peremptory challenges. By the end of the first trial day, the State had exercised three challenges, and the defense six.
The next day, while jury selection continued, the following colloquy occurred as defense counsel was about to exercise his tenth peremptory challenge:
[THE PROSECUTOR]: Your Honor, this panel is satisfactory to the State.
THE COURT: Thank you, Mr. [Prosecutor]. [DEFENSE COUNSEL]: Your Honor, will you please thank and excuse juror number four. [THE PROSECUTOR]: Your Honor, could I be heard?
THE COURT: Certainly. Okay.
THE COURT: Mr. [Prosecutor]. [PROSECUTOR]: This is the third jury we've picked on this case. I know that the last time we picked a jury we had this issue. It's raised its head again. I am not unsatisfied with the panel that we have, but, you know --
THE COURT: Just so we're all on the same page and we agree with the numbers themselves. I show now -- one, two, three, four, five, six white jurors have been excused and two African Americans -- let me just see if my records are correct. What was the other white juror? [PROSECUTOR]: I have seven.
THE COURT: Well, this would be the seventh. [PROSECUTOR]: I have that this would be the eighth.
THE COURT: Okay. Let me just see if my records are correct. what was the juror -- the other white juror. [PROSECUTOR]: The last juror was a white female.
THE COURT: That was juror number [ten]. [PROSECUTOR]: Juror number [twelve] was a white male.
THE COURT: I'm sorry -- that's correct. I miscounted. Okay. So I have one, two, three, four, five, six, seven white jurors and two African Americans. That is the correct number? [PROSECUTOR]: Yes.
THE COURT: Okay. And it's your position at this point, Mr. [Prosecutor], that you're now making a prima facie case for an inappropriate exclusion of jurors based on race?
[PROSECUTOR]: I just think, Your Honor, that we're to the point where we -- I don't want to lose the whole panel. Like I said, I am satisfied with the panel. I spent a long time doing it. I've indicated I'm satisfied with the panel. But if we're just going to keep excluding white jurors until there's no white jurors left -- I don't even care if I try this case in front of a jury with no white jurors. But it's just -- it's what's happening. It's just -- as a representative of the State I just -- I'm uncomfortable just allowing it to continue to happen.
THE COURT: Okay.
[DEFENSE COUNSEL]: Judge, with respect to the white jurors that were excused yesterday, there was a valid reason for each. For instance, we took off juror number [twelve].
THE COURT: Well, I think . . . at this point in time there is a pattern. And so I am going to now rule that the [S]tate has presented a prima facie case of exclusion based on race and that from this point forward if white jurors are to be excused there must be some rational, articulable reason for excluding those jurors that does not relate to their race. Thank you very much.
[DEFENSE COUNSEL]: As of yesterday I could have given you an alternate reason that actually I thought was a sound reason that made sense, because I did ask [defendant]. As to this juror, all I can say is that this morning I said to [defendant] that I wasn't sure how I felt about her, and that is [defendant's] basis, you know, for excluding her is my ambivalence. There is no other explanation for it.
THE COURT: Okay. Well, with regard to this juror then I am not going to allow you to excuse this juror, because there's no articulable reason for excluding her. All right.
[DEFENSE COUNSEL]: Okay.
THE COURT: And then we'll now proceed.
THE COURT: Okay. Juror number [four], can you remain please.
After realizing the potential effect of re-seating juror number four, defense counsel immediately requested another sidebar conference. There, out of the presence of the jury, he argued, "the juror now may have a prejudice against [defendant]." The prosecutor then offered the following: "All right. How about this? I have no objection to her leaving, but after this he's got to give reasons." The court acceded to this bargain, and excused juror number four.
The controversy did not end there. As defense counsel was in the midst of exercising his eleventh peremptory challenge, and had uttered the words, "Your Honor, will you thank and excuse juror number four please,"*fn2 the attorneys were sua sponte called to sidebar by the court. The following exchange took place:
THE COURT: Just before I start, for the record, I note that [defendant], through [his attorney], would like to excuse a Hispanic juror by the name of [identifying the first name of the juror then addressing defense counsel by name].
[DEFENSE COUNSEL]: [Defendant's] reason, Judge, as articulated to me, was that [defendant] felt that what [this juror] does in his spare time indicates that he would not be fair.
THE COURT: And what was that?
[DEFENSE COUNSEL]: He doesn't remember, Judge.
THE COURT: Okay. Okay. I am going to deny that request then. Thank you.
[DEFENSE COUNSEL]: [Defendant] feels that this juror is not white[*fn3 ] and, therefore, he shouldn't have the burden of explaining why he's dismissing him.
THE COURT: Okay. That is duly noted for the record.
[DEFENSE COUNSEL]: [Defendant] would like a brief recess so that he can address you directly, Judge.
THE COURT: And what's the basis for that? [DEFENSE COUNSEL]: . . . He feels that he shouldn't be subjected to an inquiry about his decisions regarding non-Caucasian jurors.
THE COURT: Okay, If you could please tell [defendant] [the court] already ruled on that issue and it's not subject to reopening. Okay. [DEFENSE COUNSEL]: Yes.
THE COURT: Thank you.
THE COURT: All right. Back on the record, after [defendant's attorney] has had a lengthy opportunity to discuss this with [defendant]. [DEFENSE COUNSEL]: The jury is satisfactory, Judge.
Later, after the not-yet-sworn jury (including the disputed juror number four) was sent home for the day, the trial court allowed Andrews to speak about his grievance. Defendant indicated that he wished to exclude the Hispanic juror because the juror was from Bloomfield -- and me, from my perception, I see it as though -- like I said before when we [were] on the record -- that certain people in certain places don't know what goes on. And I felt as though from what he said -- I thought he was lying, like, so that's why I wanted to excuse him.
The judge was not persuaded to excuse juror number four. Then defendant requested that the court ask the individual, "do[es] he feel any type of way or do[es] he have any perceived thoughts about me striking him off and [the judge] allowing him to stay." When the court indicated that such a question might backfire by "focusing a spotlight on him, getting him to think about it," defendant decided not to pursue the request. Because there was a pre-planned, two-week interruption in the trial, the court reasoned that "[b]y the time [the juror] returns he is not even going to remember that he was almost excused."
The record does not reflect the statistical diversity of the venire. However, the panel that was present when its members were sworn was comprised of "[eleven] African Americans, one Hispanic, and two Whites." From the materials presented to us on appeal, we cannot ascertain the composition of the jury that actually deliberated and found Andrews guilty.
Andrews's primary argument on appeal revolves around his claims that the trial court improperly (1) found that defense counsel had impermissibly utilized peremptory challenges, (2) imposed a blanket requirement that defendant provide a race neutral reason for excluding subsequent white jurors, (3) failed to discharge the jury panel and begin jury selection anew once it found discriminatory conduct on the part of the defense.
Distilled to its essence, Andrews takes issue with the trial court's ad hoc approach to the Gilmore issue that was presented and its failure to faithfully follow the mandate of the New Jersey Supreme Court as to a remedy for a Gilmore violation. We agree that the jury selected in Andrews's second trial was derived in contravention of the holding of Gilmore and its progeny. Consequently, our only course of action is to reverse and remand for a new trial.
It is a violation of both the United States and New Jersey Constitutions for a litigant, whether the prosecution or defense, to exercise peremptory challenges in a way that discriminates on the basis of race. See Batson v. Kentucky, 476 U.S. 79, 96, 106 S. Ct. 1712, 1723, 90 L. Ed. 2d 69 (1986) (holding that a prosecutor's racial discrimination in the exercise of its peremptory challenges violates the Equal Protection Clause of the Fourteenth Amendment); Georgia v. McCollum, 505 U.S. 42, 112 S. Ct. 2348, 120 L. Ed. 2d 33 (1992), on remand 262 Ga. 554, 422 S.E.2d 886 (1992) (extending Batson to challenges exercised by criminal defendants); Gilmore, supra, 103 N.J. at 508 (holding that a prosecutor's racial discrimination in the exercise of its peremptory challenges violates defendant's right to an impartial jury drawn from a representative cross-section of the community under Article I of the New Jersey Constitution); State v. Johnson, 325 N.J. Super. 78 (App. Div. 1999) (applying the holding in McCollum), certif. denied, 163 N.J. 12 (2000).
To establish a prima facie case of the discriminatory use of peremptory challenges, there must be sufficient evidence "'to permit the trial judge to draw an inference that discrimination has occurred.'" State v. Osorio, 402 N.J. Super. 93, 102 (App. Div. 2008) (quoting Johnson v. California, 545 U.S. 162, 170, 125 S. Ct. 2410, 2417, l62 L. Ed. 2d 129, 139 (2005)), aff'd, 199 N.J. 486, 502 (2009).*fn4 In Osorio, this court adopted the Johnson modification of the first step of the analysis set forth in Gilmore, supra, 103 N.J. at 535-39 (1986). Osorio, supra, 402 N.J. Super. at 102. In addition, we noted that "the standard for establishing a prima facie case [of purposeful discrimination in the selection of a jury] has been relaxed by Johnson." Ibid.
The Court ultimately agreed with us, and set forth an as-modified three-step process to assess claims that racial bias or other invidious discrimination has infected the process of jury selection:
Step one requires that, as a threshold matter, the party contesting the exercise of a peremptory challenge must make a prima facie showing that the peremptory challenge was exercised on the basis of race or ethnicity. That burden is slight, as the challenger need only tender sufficient proofs to raise an inference of discrimination. If that burden is met, step two is triggered, and the burden then shifts to the party exercising the peremptory challenge to prove a race- or ethnicity-neutral basis supporting the peremptory challenge. In gauging whether the party exercising the peremptory challenge has acted constitutionally, the trial court must ascertain whether that party has presented a reasoned, neutral basis for the challenge or if the explanations tendered are pretext. Once that analysis is completed, the third step is triggered, requiring that the trial court weigh the proofs adduced in step one against those presented in step two and determine whether, by a preponderance of the evidence, the party contesting the exercise of a peremptory challenge has proven that the contested peremptory challenge was exercised on unconstitutionally impermissible grounds of presumed group bias. [Osorio, supra, 199 N.J. at 492-93.]
See also Hitchman v. Nagy, 382 N.J. Super. 433, 444 (App. Div. 2006) (holding that a trial court has the authority to intervene sua sponte when it suspects invidious discrimination is being practiced during jury selection).
In the present case, it was the prosecutor who initiated the Gilmore inquiry by obliquely noting, after defense counsel was in the process of excusing an eighth white juror, "I know that the last time we picked a jury we had this issue. It's raised its head again." The trial court instantly concurred, tallying defense counsel's previous challenges to seven white and two African American jurors. Turning to defense counsel for his position, the court did not invite an individual-by-individual explanation of the defense's peremptory challenges. The explanation of the attorney was the following:
"Judge, with respect to the white jurors that were excused yesterday, there was a valid reason for each. For instance, we took off juror number [twelve]."
Immediately, without requesting further explication from the defense, the court concluded:
Well, I think . . . at this point in time there is a pattern. And so I am going to now rule that the [S]tate has presented a prima facie case of exclusion based on race and that from this point forward if white jurors are to be excused there must be some rational, articulable reason for excluding those jurors that does not relate to their race. Thank you very much.
We conclude that the trial court failed to conform to the then-extant Osorio paradigm, neglected to make adequate findings with respect to the defense attorney's alleged discriminatory use of peremptory challenges, and by initially re-seating the juror who had been excused, it imposed upon defendant a remedy for which there is no provenance in New Jersey law. The first two of these short-comings arguably could be ameliorated by a remand to the Law Division to supplement the record, make adequate findings of fact, and reconsider the conclusion that the prosecutor established that defense counsel used his peremptory challenges in a racially discriminatory manner. See Osorio, supra, 402 N.J. Super. at 98; State v. Clark, 316 N.J. Super. 462, 467 (App. Div. 1998), appeal after remand, 324 N.J. Super. 558, certif. denied, 163 N.J. 10 (2000). However, because a juror was ultimately seated over the objection of defendant, a remand would not cure the constitutional defect, and a new trial is in order. See State v. Chevalier, 340 N.J. Super. 339 (App. Div.) (recognizing the primacy of the Gilmore remedy), certif. denied, 170 N.J. 386 (2001).
Gilmore, decided pursuant to state constitutional principles, and Osorio, which merely refined Gilmore for the twenty-first century, both stand for the proposition that if the aggrieved party sustains its burden of demonstrating constitutionally-impermissible grounds of presumed group bias, the court must then conclude that the jury as constituted fails to comply with the representative cross-section requirement, and it must dismiss the jurors thus far selected. So too it must quash any remaining venire. . . . Upon such dismissal a different venire shall be drawn and the jury selection process may begin anew.
[Gilmore, supra, 103 N.J. at 539 (quoting People v. Wheeler, 583 P.2d 748, 765 (Cal. 1978)).]
Instead of implementing this bright-line solution, the trial court seated a juror who had been peremptorily challenged, thereby causing a forced forfeiture of defendant's statutory and rule-based right to exercise a peremptory challenge. N.J.S.A. 2B:23-13(b); R. 1:8-3(d).
The "loss of a peremptory challenge due to a state court's good-faith error is not a matter of federal constitutional concern." Rivera v. Illinois, 556 U.S. 148, 154, 129 S. Ct. 1446, 1454, 173 L. Ed. 2d 320, 328 (2009). "Rather, it is a matter for the State to address under its own laws." Ibid. Thus, we turn to the guiding principles of Gilmore for our solution.
Gilmore's core lies in its recognition that the New Jersey Constitution ensures that jury trials shall proceed only "by an impartial jury without discrimination on the basis of religious principles, race, color, ancestry, national origin, or race." Supra, 103 N.J. at 524; see also N.J. Const. art. I, ¶¶ 5, 9, 10. The means to that end is the public jury selection process, which is practiced by the litigants, but borne by the prospective jurors. In this vein, the Court has further noted:
Article I, paragraph 5 implicates not only the defendant's civil rights but also those of citizens generally -- and, historically, one of the rights and obligations of citizenship has been to participate in the administration of justice by serving on grand and petit juries. Concomitantly, the representative cross-section rule not only promotes the overall impartiality of the deliberative process but also enhances the legitimacy of the judicial process in the eyes of the public by serving the following other essential functions: legitimating the judgments of the courts, promoting citizen participation in government, and preventing further stigmatizing of minority groups. [Id. at 525 (internal citations and quotations omitted).]
In McCollum, the Supreme Court stated that when a court "allows jurors to be excluded because of group bias, it is a willing participant in a scheme that could only undermine the very foundation of our system of justice -- our citizens' confidence in it.'" Id. at 505 U.S. 49-50, 112 S. Ct. at 2354, 120 L. Ed. 2d at 45 (quoting State v. Alvarado, 221 N.J. Super. 324, 328 (Law. Div. 1987)).
The State argues that different remedies may be appropriate for a Gilmore violation so long as they require protections be in place to guard against the re-seated juror developing resentment towards the challenging party. See People v. Willis, 43 P.3d 130 (Cal. 2002); see also Chevalier, supra, 340 N.J. Super. at 356 ("In line with ensuring an impartial jury, we sense there may be situations where jurors who are removed by peremptory challenges and then reseated might resent defense counsel and 'take it out on his client' in deciding the case, rather than deciding the case on the evidence."). However, Chevalier also noted that implementation of alternate remedies -- such as warning counsel or the re-seating of a juror -- comes only after "the judge has applied the Gilmore remedy." Id. at 357. See also State v. Scott, 309 N.J. Super. 140, 152 (App. Div. 1998) (holding that Gilmore unequivocally requires that the entire venire be discharged and the selection process begin anew where there has been an unconstitutional use of a peremptory challenge).*fn5
We conclude that no matter how well-intentioned, the trial court's truncation of the Gilmore framework, coupled with its premature deprivation of defendant's peremptory challenge to the Hispanic juror, erodes our confidence in the integrity of the process that selected the jury. As such, we lack assurance that the trial court's constitutional mandate to ensure a fair trial was fulfilled. A new trial is required.*fn6
We have ordered a new trial on the charges left undecided after the first trial, and therefore we need not consider most of Andrews's additional arguments, which are moot. However, he claims several errors infected his first trial, which independently necessitate a reversal of that conviction. We disagree.
For the first time on appeal, Andrews argues that the prosecutor's comments during closing argument at the first trial were so prejudicial that they infringed upon his constitutional right to a fair trial and privilege to remain silent. Specifically, Andrews alleges that the following statement was improper:
Nobody that has ever come up to the stand has known who the shooter was, save one person. And that's Amir Andrews. And he's the only one to blame for that.
He's the only one that knows who the unindicted co-conspirator was. . . . Trust me, we would all love to have the shooter, but we don't. And the trial is not about who that shooter was.
Additionally, Andrews claims that the prosecutor's closing exhortation to the jury to "find that same courage [as the victim] and come back and render a verdict of guilty on all counts," was capable of producing an unjust result.
It is well-settled that whether objected to or not, prosecutorial misconduct constitutes grounds for reversal of conviction only if so egregious as to have deprived a defendant of a fair trial. See, e.g., State v. Josephs, 174 N.J. 44, 124 (2002); State v. Koskovich, 168 N.J. 448, 489 (2001); State v. Smith, 167 N.J. 158, 181-82, 185 (2001). There is nothing in the remarks in question, particularly considering the proofs offered at trial and in the context of the summation as a whole, that could be characterized as egregious. Contrary to Andrews's assertion, we do not view these comments similar to those comments in a prosecutor's summation that have been held to be improper. See, e.g., State v. Rose, 112 N.J. 454, 521 (1988); Jackowitz v. Lang, 408 N.J. Super. 495, 505-06 (App. Div. 2009); State v. Hawk, 327 N.J. Super. 276, 282-83 (App. Div. 2000).
Here, although the prosecution made reference to Andrews as being the only one to know the co-conspirator's identity, this neither infringed defendant's Fifth Amendment right against compelled testimony nor constituted a negative inference being drawn from defendant's failure to testify. State v. Zola, 112 N.J. 384, 427 (1988) (holding that a prosecutor's opening remarks observing that only the defendant and the murder victim knew for sure how the defendant entered the victim's home did not violate the defendant's Fifth Amendment rights), cert. denied, 489 U.S. 1022, 109 S. Ct. 1146, 103 L. Ed. 2d 205 (1989).
While prosecutors are "expected to make vigorous and forceful closing arguments to juries" and are therefore "afforded considerable leeway in closing arguments," they are nevertheless confined to making comments that "are reasonably related to the scope of the evidence presented." State v. Frost, 158 N.J. 76, 82 (1999). As such, a prosecutor is bound to "'confine [his or her] comments to evidence revealed during the trial and reasonable inferences to be drawn from that evidence.'" State v. Bradshaw, 195 N.J. 493, 510 (2008) (quoting State v. Smith, 167 N.J. 158, 178 (2001)). Moreover, prosecutors should not use their remarks during summation to "vouch for the credibility of a witness." Id. at 510. It is also improper for prosecutors to pressure juries to convict. State v. Pennington, 119 N.J. 547, 576 (1990).
Because Andrews did not object to the prosecutor's comments at the time of the summation, we review his argument under the lens of plain error as articulated in Rule 2:10-2. Pursuant to this standard, we will not reverse on the basis of such error unless we find it was "clearly capable of producing an unjust result." Ibid. The possibility of producing an unjust result "must be real, one sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971). Moreover, our assessment of plain error "depends on an evaluation of the overall strength of the State's case." State v. Chapland, 187 N.J. 275, 289 (2006). Furthermore, the absence of an objection at the time the alleged error occurred may well indicate that counsel did not consider such error to be significant in the context of the trial. Macon, supra, 57 N.J. at 333.
We find that the summation comments were entirely incapable of producing the undue prejudice claimed by Andrews. None of the prosecutor's comments were so prejudicial so as to constitute plain error. Looking at the context in which the prosecutor invoked the victim's putative valor in calling emergency responders and in her subsequent conduct, we cannot discern even a scintilla of unfair comment or misconduct. The jury was simply urged to evaluate the victim's evidence under the totality of the circumstances.
Andrews's supplemental letter brief raises the following issues*fn7 regarding the first trial:
POINT I: APPELLANT'S DENIAL OF HIS U.S. CONST. RIGHT 6TH AMEND. TO HIRE PRIVATE COUNSEL WAS [A] GROSS VIOLATION AND NOT A HARMLESS ERROR.
POINT II: THE ERRORS CONSIDERED IN COMBINATION CAUSED A CUMULATIVE AND SUFFICIENT HARMFUL EFFECT THAT DEPRIVED APPELLANT A FAIR JURY AND PUBLIC TRIAL. POINT III: APPELLANT SUBMIT[S] THE JURY INSTRUCTION, PURSUANT TO N.J.S.A. 2C:28-5, 2ND. DEGREE WITNESS TAMPERING, AND DEFINITION OF FORCE WAS ERROR, AS PREJUDICIAL CONTRARY TO THE ELEMENTS TO CONVICT ESPECIALLY SINCE THE INDICTMENT NEVER ALLEGED SUB. PAR. A, (1 TO 5); B; C; D OR SUB. PAR. E.
POINT IV: FAILURE TO GIVE A SUA SPONTE CLAWANS INFERENCE CHARGE WAS PREJUDICIAL ERROR THAT DEPRIVED THE JURY ESSENTIAL EVIDENCE DURING THEIR DELIBERATION AND TO LEGALLY CONSIDER, AS JUDGES OF THE FACTS. POINT VI: THE ILLEGAL COLLOQUY WITH THE COURT AND JURY, VIOLATED IMPARTIALITY IN THE TRIBUNAL AND SAID IMPROPRIETY INFLUENCED THE JURY'S DECISION MAKING THAT [IS] CONTRARY TO THE CODE OF JUDICIAL CONDUCT.
From our review of the record, these arguments are clearly without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). However, we briefly comment upon them.
Andrews was represented by designated counsel assigned by the Office of the Public Defender. Defendant sought to adjourn the first trial on the day that it was scheduled to begin so he could obtain the services of a privately-retained attorney. The trial court made reasonable efforts to ensure that all of defendant's concerns regarding his representation were addressed. The court stated that it was denying the motion because defendant did not have another lawyer ready to serve as counsel, and waiting to find another lawyer would unfairly delay the trial and the delivery of justice.
Rulings on requests to adjourn a trial are discretionary and do not amount to reversible error unless the reviewing court finds that the trial court abused its discretion. See State v. Garcia, 195 N.J. 192, 196 (2008). Given the circumstances of defendant's belated request for more time to obtain different counsel, we discern no infringement upon his Sixth Amendment right to counsel; see also State v. A.O., 198 N.J. 69, 81 (2009) (recognizing congruent right to counsel under Article I, ¶10 of the New Jersey Constitution).
Defendant next challenges the jury instructions pertaining to count nine, witness tampering. He claims that error was committed because the court instructed the jury on the subparts of N.J.S.A. 2C:28-5, but those subparts were not included in the indictment. This argument is wanting. The court read the proper statute to the jury in defining the elements of witness tampering under N.J.S.A. 2C:28-5, including the requirement of "use of force." The jury charge did not include a new offense separate from the allegations in the indictment.
Andrews also asserts that he was entitled to a Clawans*fn8 adverse inference jury charge regarding the missing unindicted, unidentified co-conspirator. When issuing a Clawans charge, a trial court must determine that the following requirements are met:
(1) that the uncalled witness is peculiarly within the control or power of only the one party, or that there is a special relationship between the party and the witness or the party has superior knowledge of the identity of the witness or of the testimony the witness might be expected to give;
(2) that the witness is available to that party both practically and physically;
(3) that the testimony of the uncalled witness will elucidate relevant and critical facts in issue[;] and
(4) that such testimony appears to be superior to that already utilized in respect to the fact to be proven. [State v. Hill, 199 N.J. 545, 561-62 (2009).]
Here, the requirements for issuing a Clawans charge against the prosecution are not met. The unindicted, unknown co-conspirator is unidentified and unavailable. Therefore, it was not within the prosecution's power to present such person's testimony in court.
Turning to Andrews's claim that the trial judge engaged in an "illegal colloquy" with the jury, we find such contention to be unsupported by the record. What defendant identifies as a prohibited exchange with the jury was nothing more than an ordinary on-the-record explanation of the intricacies of the witness tampering statute. The court's one-word response to a lone juror's question had no capacity to improperly influence the jury or pressure it to reach a particular verdict.
Lastly, we address Andrews's argument of cumulative error. State v. Orecchio, 16 N.J. 125, 129 (1954). Because we find no error, this argument is without merit.
In summary, we find that the mode of selecting the jury in Andrews's second trial was constitutionally infirm. This infraction "may not be treated as harmless error." Gilmore, supra, 103 N.J. at 544 (citing State v. Gilmore, 199 N.J. Super. 389, 413 (App. Div. 1985). The case must be remanded for a new trial. On the other hand, we find no vulnerabilities in the first trial that warrant our intervention and the jury's conviction of Andrews for violating N.J.S.A. 2C:28-5 remains intact.
Reversed and remanded for further proceedings in accordance with this opinion. We do not retain jurisdiction.