May 11, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
LOUIS WILLIAMS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 07-01-0105.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 7, 2011
Before Judges Axelrad, Sapp-Peterson and Ostrer.
An Atlantic County jury on May 4, 2009 found defendant guilty of purposeful or knowing murder, N.J.S.A. 2C:11-3a(1) and (2); possession of a handgun with an unlawful purpose, N.J.S.A. 2C:39-4a; unlawful possession of a firearm, N.J.S.A. 2C:39-5b; endangering an injured victim, N.J.S.A. 2C:12-1.2; automobile theft, N.J.S.A. 2C:20-3; hindering apprehension, N.J.S.A. 2C:29-3a(3); disturbing or desecrating human remains, N.J.S.A. 2C:22-1a; and possession of a weapon by a convicted person, N.J.S.A. 2C:39-7. For the murder, the trial court sentenced defendant to sixty-five years, eighty-five percent of which had to be served before parole eligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The court imposed a consecutive ten-year sentence, with five years of parole ineligibility, for the certain person not to possess a firearm offense, and a concurrent five-year term for the automobile theft. The court merged the other convictions into the murder conviction. We reverse the convictions because the trial court did not clearly and unequivocally instruct the jury to begin deliberations anew after substituting two alternate jurors for two deliberating jurors who were unable to continue.
According to the State's proofs, on June 13, 2006, Delrico Herring was shot four times in the head, at point blank range, outside Phillip Schwartzbeck's Egg Harbor residence.
Schwartzbeck and Preston Milbourne (Preston)*fn1 discovered Herring's body on the front lawn when they returned to the house during their lunch break. They had been doing carpentry work at Guy Salani's house nearby. Salani noticed their arrival at his house between 9 and 9:15 a.m. Salani's wife noticed they were present all morning.
Preston testified he drove his car to Schwartzbeck's house the morning of June 13, with defendant, Louis "BL" Williams, in the passenger seat. Preston asserted he let defendant borrow his gold Ford Taurus to run errands. In contrast, Schwartzbeck testified Preston was in the passenger seat when he arrived, apparently driven by his sister.
Meanwhile, the victim dropped his daughter off at school in Galloway Township at 8:51 a.m. while driving a gray Mercedes SUV. Although he planned to return to pick up his daughter after school, he failed to appear.
Preston testified he knew the victim since they were children. The victim supplied Preston with five to eight pounds of marijuana a week, which he resold for roughly $1300 a pound, yielding $300 to $400 in net profit. Preston testified the victim called him shortly after he arrived at the Salani home, asking him if he wanted to be resupplied, which he did not. Defendant then "chirped" Preston at work around 9 a.m., asking him "where's your boy at," referring to the victim. Preston testified the victim had supplied cocaine to defendant, who, defendant maintained to Preston, sold less than he represented.
Shortly before 10 a.m., a witness, Marie Conover, observed defendant in a silver Mercedes SUV, like the victim's, on her block in Pleasantville. According to a pre-trial Wade*fn2 hearing, a detective uninvolved in the homicide investigation presented Conover with a six-photo array eight days after the homicide. The array consisted of African-American males born between 1974, defendant's birth year, and 1978, consistent with Conover's statement that the man she observed had shoulder length hair and was wearing a white t-shirt. All men had braids or dreadlocks, ranging from ear-length to shoulder-length, in defendant's case. After her fourth review of the array, Conover identified defendant with "99.9 percent" confidence, stating his eyes were a distinguishing characteristic.
Around 11 a.m., Preston testified, defendant "[c]alled me and said that he got with Rico Herring and said that shit went bad and he had to twist his cap back," which meant, shoot him in the head. Defendant advised Preston not to return to Schwartzbeck's house for lunch as he and Schwartzbeck usually did, but Preston could not dissuade Schwartzbeck from returning.
After they discovered the victim's body and Preston's own car parked in the driveway, Preston said, "I know this cat. I think he's my dealer." Although Schwartzbeck wanted to call the police, Preston dissuaded him. Schwartzbeck also helped Preston put the body in the car's trunk. Preston then drove to his mother's home, where he lived and defendant was waiting. Defendant then told Preston that he got into an argument with the victim and shot him while they both were sitting in Preston's car, and defendant then pulled the victim out of the car and shot him again.
Preston and defendant cleaned out the car. Defendant attempted to burn the victim's belongings - his cell phone, hat and sandals - in the barbecue, but charred remnants of those items remained. After dark, defendant and Preston disposed of the body in a wooded area in Egg Harbor Township.
After Preston left Schwartzbeck's house, Schwartzbeck claimed he returned to work alone at Salani's house, and still did not alert police. Schwartzbeck informed Salani about the discovery of the body. Salani initially didn't believe Schwartzbeck, but ultimately, Salani conferred with an attorney, and then notified police that evening what he learned from Schwartzbeck. Also during the evening, Schwartzbeck met Preston at a Wawa to return to Preston belongings he had removed from the trunk when he loaded the body, and a Home Depot bucket with marijuana Preston had kept at Schwartzbeck's house.
Informed by Salani, Egg Harbor police officers went to Schwartzbeck's home to investigate and found blood and other evidence. Schwartzbeck was arrested.*fn3 He informed police of Preston's involvement and the police began to search for him. The police located Preston's Ford Taurus in his mother's driveway. Eventually, police identified one of defendant's finger prints on the trunk. Police also recovered other items of tangible evidence at Preston's mother's house, including a gold cross the victim wore, a piece of bone or tooth, and the burnt items. After police asked Preston's mother where her son was, she called to speak to her daughter Shartega, who lived with defendant. However, Preston's mother spoke to defendant, who said, falsely, he was unaware of Preston's whereabouts.
Defendant and Preston's sister then drove to Preston's wife's house in Galloway Township, where Preston was staying for the night. Defendant told Preston the police had located his car and he needed to flee. So, Preston's sister drove Preston to New York City. Defendant accompanied them and gave Preston a thousand dollars to flee to California.
Sitting in his hotel room in Harlem, Preston decided to return to New Jersey, testifying, "I ain't have nothing to do with it. I ain't kill him and I wanted to do the right thing." He contacted his mother, and then a police detective he knew on the Pleasantville Police Department, who advised him to turn himself in. His wife drove to New York and brought him back to New Jersey. He returned for questioning by Egg Harbor Township police.
Preston gave at least four different versions of what happened the previous day. He initially asserted falsely that after he discovered the body, he hitched a ride and then walked to his mother's house. He also initially claimed ignorance of where the victim's body was discarded and asserted that defendant drove off with the body by himself. He denied the victim and defendant did business.
He submitted to a lie detector test and was deemed to be deceptive when he responded in the negative to three questions: "Did you kill Rico?"; "Regarding Rico, did you kill him?"; and "Do you know for sure where Rico is now?" However, after police informed Preston he failed the polygraph, he told them where the body was located, alleged defendant's involvement, and led police there in the early morning hours of June 15. He testified that he was entirely truthful after he was confronted with the polygraph results and continued to insist he did not kill the victim.
Defense counsel had moved pre-trial to admit the polygraph evidence, "not to show that he [Preston] was lying, not the reliability, but the fact that he changed his stories." Defense counsel relied on State v. Castagna, 187 N.J. 293 (2006), and argued admission of the polygraph evidence was essential to defendant's ability to assert third-party guilt.
The court agreed to permit general reference to the polygraph to raise questions about Preston's credibility, but barred defendant from eliciting the specific questions Preston reportedly answered deceptively. The court explained it was balancing defendant's right to confront witnesses against him, with the settled rule that polygraph evidence was inadmissible absent a stipulation of the parties to the case. The court charged the jury in the midst of trial after reference to the polygraph, and, as discussed below, at the close of evidence, that polygraph evidence was inadmissible as proof that a person was truthful or untruthful absent a stipulation, which was absent in this case, and the evidence that Preston submitted to a polygraph and then changed his story was admitted for the sole purpose of assessing Preston's credibility.
The victim's vehicle was found on Marie Conover's block on June 17, after her brother Art matched it to the vehicle described by police in public announcements. After Art identified the vehicle, his sister Marie came forward. She was interviewed June 21 and described what she had noticed June 13. Art Conover testified the vehicle had remained in the same place near his house for days. Marie Conover, by contrast, testified that she saw the vehicle come and go other days during the week, after she saw defendant leave the car, although she did not see who was driving it on those other days.
Defendant fled to Texas after the homicide, traveled to Georgia, and moved to Philadelphia. On July 8, 2007, defendant was arrested in Philadelphia for a traffic violation. He initially escaped from custody in Philadelphia, but was recaptured soon after.
In a Mirandized*fn4 statement to police on July 9, defendant denied killing Herring and only admitted to helping Preston clean the Ford Taurus.
At trial, the defense argued Preston committed the murder, and defendant only helped clean the car after Preston called him for help. Defendant argued that Preston, as well as other key State witnesses were not credible, pointing out inconsistencies in their prior statements, and inconsistencies between their testimony and that of other witnesses. The defense argued it was implausible that defendant would have killed the victim at Schwartzbeck's house, and then left his body at Schwartzbeck's house out in the open; and it was much more plausible that Preston killed the victim.
Defense challenged Schwartzbeck's credibility by eliciting on cross-examination that when police first questioned him at his house, he feigned ignorance. In his first sworn statement to police, he denied helping to load the body into the trunk, and denied seeing Preston again after he left his house, but admitted doing those things in a second statement two days later. Schwartzbeck also denied Salani advised him to call the police. He claimed he returned to work that afternoon without mentioning his discovery of a dead body to any other contractors working at the house. Salani testified that to his knowledge, Schwartzbeck did not return to work, but spoke to him by phone at around 3 p.m., and then came by at around 5 p.m. Salani also testified that Schwartzbeck told him that he had nothing to do with anything. Schwartzbeck also conceded on cross-examination that when he met Preston at the Wawa, Preston told him that he "going MIA," which was before defendant allegedly suggested he flee to New York City. In his third statement to police shortly before trial, Schwartzbeck asserted Preston sold cocaine to persons in the housing project where he lived, but he overheard Preston argue on the phone about someone looking for his supplier and an amount that was "short."
The defense also attempted to suggest in cross-examination that Ms. Salani may have been mistaken in recalling that Preston and Schwartzbeck were present all morning June 13, 2006, eliciting that she did not provide a statement regarding her observations until 2009. The defense also suggested she was engrossed in her own work in her home office and she may not have noticed their whereabouts.
Defense also elicited in cross-examination of a telephone company witness that there were no recorded calls between the victim and a phone that defendant used. However, there were multiple "chirps" the morning of June 13 between Preston and an unknown user. The defense also suggested Marie Conover's identification of defendant was mistaken, as defendant did not have shoulder length hair in June 2006, according to defense proofs, and was not wearing a white t-shirt according to Preston.
Defendant also called four witnesses. Shartega, who had been defendant's girlfriend for five years and was pregnant with his child, testified she was with defendant from 7:00 a.m. on June 13, 2006 until she dropped him off at her mother's house, where Preston was already cleaning the car. Shartega disavowed a sworn statement she gave to police on June 14, 2006 that she had not seen defendant for three days, until she saw him late in the afternoon of June 13, 2006 at her mother's house, where he was already washing the car with Preston. Shartega claimed she gave the false statement out of pique over defendant's perceived infidelity.
Shartega testified that early the morning of June 14, 2006, she drove her brother Preston to New York City, with defendant along for the ride. She disavowed her prior statement that she did not drive her brother to New York. She testified that after defendant relocated to Texas, she reunited with him there about a month after the homicide. They eventually moved to Philadelphia.
A fellow county inmate of Preston, Victor Marrero, testified he overheard Preston tell his cousin and uncle, who were also incarcerated, "he didn't mean to shoot the guy."
Another witness, Umar Abdullah, who had an extensive prior criminal record and used multiple aliases, testified he knew Preston by the nickname "Vengeance." Abdullah asserted Preston agreed to help him get a job doing maintenance at an apartment building, and when Abdullah questioned whether his prior record would be an impediment, Preston answered that he got the job, even though he "beat a body," which Abdullah said meant that he had "beat a murder."
A records custodian from the Borgata casino authenticated an employment-related photograph of defendant from December 2005, which displayed his hair length at that time, to call into question the accuracy of Conover's identification six months later.
Before the close of evidence, the court dismissed juror number seven because of medical reasons.
At the outset of the trial, the court informed the jurors that they would be permitted to take notes.
You'll be permitted to take notes in this trial because of the length of the trial and the number of witnesses. So if nothing else, you'll be able to put little notes down about each witness or whatever they said. . . . We don't always let jurors take notes, but my personal rule is that any trial that is over a week I think it becomes helpful and not a distraction.
The court also advised jurors their notes would remain secured in the courthouse after each day's proceedings. Neither counsel voiced an objection. The court also did not deliver the model instructions, or any other instruction, regarding note-taking or use of notes.*fn5 Cf. Model Jury Charge (Criminal), "Note Taking by Jurors (Instructions After Jury Is Sworn In)" (1998) and Model Jury Charge (Criminal), "Note-Taking by Jurors (Instructions Post Evidence)" (1998).
In its final charge to the jury, the court instructed the jury regarding the polygraph evidence, including the following:
Now, again, you've heard testimony that Preston Milbourne voluntarily submitted to a polygraph conducted by the Prosecutor's office in connection with this case. You heard evidence that after being advised that he failed the polygraph exam, that Mr. Milbourne then provided an additional, different statement to law enforcement officers, which statement forms the basis of his courtroom testimony. I have instructed you and I instruct you again, that a polygraph exam that was administered to him and that a different statement was thereafter obtained by him may only be considered by you in assessing the credibility or believability of any of the statements given by Mr. Milbourne.
The law has determined that polygraph tests are scientifically unreliable and not admissible in evidence without an agreement or stipulation by all the parties that the results shall be admitted into evidence. In this case, there was no such agreement to admit any polygraph results. Therefore, you should not give any weight to the fact that you heard testimony that the witness failed a polygraph test, nor may you automatically assume that the results of a polygraph test are reliable and truthful. You may, however, consider the fact that the witness, Mr. Milbourne, agreed and submitted - agreed to submit to a polygraph test and after being confronted with the results of that test thereafter gave [an] additional, different statement to law enforcement officers at that time. You may consider this along with all other things that I previously told you to consider when assessing the credibility of someone who testifies. You are to consider the evidence in its totality and to determine what part or any of the evidence you believe.
The jury began deliberations at 11:10 a.m. on Thursday, April 23, 2009. Shortly before a luncheon recess, the jury requested blowups of telephone records that were in evidence, and a time-line not in evidence that the prosecutor used in summation. After lunch, the court with counsel's agreement, provided the phone records, but not the timeline. The jury deliberated until 4:08 p.m. and was asked to reconvene Monday, April 27, at 8:30 a.m.
Around 9:30 a.m., the court noted the jury requested read backs of the entire testimony of Schwartzbeck, Preston, and Conover. After a short recess following the incomplete read back of Schwartzbeck's testimony, the jury advised the court it did not require further reading of Schwartzbeck's testimony, wanted a reading of Preston's testimony only pertaining to "the time he arrived at [Schwartzbeck's] to the time that he left for lunch and came back," but still wanted to hear all of Conover's testimony. The read backs were completed before the lunch break at 12:15 p.m. The record does not reflect the precise time the jury returned to the deliberation room after lunch.
At 3:45 p.m., the judge conducted an inquiry with one juror regarding a remark made to a court attendant, but did not excuse the juror. The jury was released at 4:18 p.m. and directed to return Wednesday at 8:30 a.m.
The record does not reflect when the jury actually resumed deliberations on Wednesday, April 29. No notes or requests for read backs were received during the morning. At some unspecified time during the afternoon, the court called the jury into court and determined to adjourn for the day to allow one juror to attend a meeting relating to her unemployment. The court then excused, without objection, a juror from further service because of travel plans the juror evidently disclosed during jury selection.*fn6 At the time, the court apparently did not believe the plans would be of consequence, given the anticipated length of trial.
The court then appointed the juror who was previously designated Alternate Number 1 to join the deliberating jury. The court delivered the following instruction: That means when you come tomorrow morning, you will now be in the jury room. Now, what this means, ladies and gentlemen, is this. Means [Alternate Number 1] obviously did not have the benefit of all your discussions. So, therefore, you must begin your deliberations anew, to bring him up to speed. All right. So you must do that tomorrow because he obviously wasn't there. He didn't know what you discussed. So you start deliberating fresh tomorrow and he will be a sitting juror tomorrow, all right? . . . . [Alternate Number 1] will step in and deliberate starting tomorrow morning and you'll be here at 8:30 tomorrow morning and begin your deliberations anew. All right. No objection to the instruction was raised.
Although the jury was released for the day, deliberating Juror Number 16 remained to report to the judge that his fiancee had to attend a training course the next day, which would create child care problems. The judge stated he was disinclined to give the jury the next day, a Thursday, off, as the jury was not scheduled to be in Friday, which would have resulted in a four-day gap in deliberations. Defense counsel agreed that a four- day gap was "no good." The court accepted the juror's need to be absent the next day, and excused him if he could not make child care arrangements. He was told to report by telephone the next morning if he could not serve. Defense counsel expressly stated it was "all right with my client" to substitute another alternate.
The following day, after Juror Number 16 reported he was unable to serve, the court informed the jury that Juror Number 16 had also been excused. The court appointed another alternate and delivered another instruction, without objection:
All Right. You'll note Juror 16 is also absent. He had a family matter that had to be taken care of. So, therefore, Juror Number 3, . . . you'll be deliberating, all right? You're the second alternate, you and [Alternate Number 1] will be deliberating.
As I told you, you have to begin your deliberations anew for the benefit of those who were not privy to your prior conversations. So that might take a little more time, but that's just the way it has to be done. You can't have somebody jump in and know everything that you have discussed. So it really gives you an opportunity to rehash the things that you've already discussed as well. So it's really beneficial to you as well.
All the evidence is in there. Your notebooks are in there and you may now retire and begin your deliberations anew and then there's only one alternate left.
The jury deliberated the full day, without requesting read backs or clarified instructions, and were excused shortly after 4:10 p.m.
After the jury returned Monday May 4, 2009, deliberations were interrupted while the court conducted an inquiry into reported outside contact with two jurors, but determined without objection, that no corrective action was warranted. The jury reached a verdict during its afternoon session, finding defendant guilty of all counts except the certain persons offense, which was bifurcated. The time is not noted in the record, but it was apparently early in the afternoon, as the court proceeded to instruct the jury regarding the certain persons offense, the jury retired to deliberate, and then returned with a guilty verdict on that count as well.
Defendant raises the following points on appeal:
I. THE DEFENDANT'S RIGHT OF CONFRONTATION AND TO PRESENT A DEFENSE WAS VIOLATED WHEN THE COURT PRECLUDED CROSS-EXAMINATION ABOUT THE QUESTIONS ASKED MILBOURNE DURING A POLYGRAPH
II. THE COURT EXCUSED TWO DELIBERATING JURORS WITHOUT MAKING THE PROPER INQUIRY AS TO HARDSHIP, AND FAILED TO PROPERLY CHARGE THE RECONSTITUTED JURY
(not raised below)
A. THE COURT FAILED TO MAKE THE PROPER INQUIRY
BEFORE EXCUSING DELIBERATING JURORS
B. THE COURT FAILED TO CORRECTLY CHARGE THE RECONSTITUTED JURY TO BEGIN DELIBERATIONS ANEW
III. THE CONVICTION FOR ENDANGERING AN INJURED VICTIM MUST BE VACATED BECAUSE THE STATE OFFERED NO EVIDENCE THAT THE VICTIM WAS ALIVE WHEN ABANDONED
IV. THE TRIAL COURT FAILED TO FOLLOW THE MANDATES OF
R. 1:8-8(b) AND PROPERLY INSTRUCT THE JURY ON NOTE-TAKING (not raised below)
V. THE COURT ERRED IN ADMITTING THE OUT-OF-COURT IDENTIFICATION OF THE DEFENDANT BY MS. CONOVER BECAUSE IT LACKED SUFFICIENT RELIABILITY UNDER THE CIRCUMSTANCES IN WHICH IT WAS MADE
VI. THE SENTENCE OF [TEN] YEARS, FIVE YEARS BEFORE PAROLE, CONSECUTIVE TO THE NERA TERM FOR MURDER OF [SIXTY-FIVE] YEARS, WAS MANIFESTLY EXCESSIVE
We are persuaded the court failed to instruct the reconstituted jury clearly and unequivocally of its obligations to begin deliberations anew, to disregard prior statements and deliberations, and to give no weight to the opinions of the excused jurors. We deem this to be plain error warranting reversal and a new trial. Given that conclusion, we need not reach defendant's argument that the court erred in excusing two deliberating jurors as unable to serve and reconstituting the jury after an extended period of deliberations. We shall, however, briefly address other issues, unrelated to juror substitution, likely to recur on remand.
Rule 1:8-2(d)(1) vests in the trial court the discretion to retain alternate jurors after deliberations begin, to excuse a juror who is unable to continue, and to substitute an alternate for the excused juror. But if the court makes those three discretionary decisions, the court is required to instruct the reconstituted jury to deliberate anew.
Following the drawing of the names of jurors to determine the issues, the court may in its discretion order that the alternate jurors not be discharged . . . . If the alternate jurors are not discharged and if at any time after submission of the case to the jury, a juror dies or is discharged by the court because of illness or other inability to continue, the court may direct the clerk to draw the name of an alternate juror to take the place of the juror who is deceased or discharged. When such a substitution of an alternate juror is made, the court shall instruct the jury to recommence deliberations and shall give the jury such other supplemental instructions as may be appropriate. [Id.]
"The Rule attempts to strike a balance between the need for judicial economy, especially in the context of lengthy trials, and the fundamental right of defendants to a fair trial by jury." State v. Valenzuela, 136 N.J. 458, 467 (1994). However, a court must apply the ruling "sparingly" and as a "last resort," to avoid the waste of effort of a mistrial. Id. at 468 (internal quotation and citation omitted). Errors in the sensitive area of jury substitution are "cognizable as plain error." State v. Corsaro, 107 N.J. 339, 346 (1987).
In light of the centrality of jury deliberations to our criminal justice system, errors that could upset or alter the sensitive process of jury deliberations, such as improper jury substitution, "trench directly upon the proper discharge of the judicial function"; for this reason such errors are "cognizable on appeal as plain error notwithstanding their having been precipitated by a defendant at the trial level." [Id. at 347 (citation omitted).]
In deciding that substituting a juror after deliberations have begun did not offend the Constitution, our Supreme Court emphasized the need to assure that the reconstituted jury starts anew and to clearly instruct it to do so.
We find that Rule 1:8-2(d) in providing that for good cause shown, an alternate juror may be substituted for a regular juror after deliberations have begun, does not offend our constitutional guaranty of trial by jury. Certainly good cause appeared when the juror in question stated that in his then nervous and emotional condition, he did not think he could render a fair verdict. Of course, when an alternate juror is so substituted, the jury must be instructed in clear and unequivocal terms that it is to begin its deliberations anew and that, as the trial judge stated herein, "you are in effect going to have to start over." [State v. Miller, 76 N.J. 392, 406-07 (1978).]
See also State v. Trent, 79 N.J. 251, 257 (1979). "The constitutional guarantee of a jury trial in criminal causes . . . is violated unless the verdict is the product of 12 jurors who have heard all the evidence and arguments and who have deliberated together to reach a unanimous decision." State v. Lipsky, 164 N.J. Super. 39, 45 (App. Div. 1978).
Our Court has adopted the rationale of the California Supreme Court:
It is not enough that 12 jurors reach a unanimous verdict if 1 juror has not had the benefit of the deliberations of the other 11. Deliberations provide the jury with the opportunity to review the evidence in light of the perception and memory of each member. Equally important in shaping a member's viewpoint are the personal reactions and interactions as any individual juror attempts to persuade others to accept his or her viewpoint. The result is a balance easily upset if a new juror enters the decision-making process after the 11 others have commenced deliberations. The elements of number and unanimity combine to form an essential element of unity in the verdict. By this we mean that a defendant may not be convicted except by 12 jurors who have heard all the evidence and argument and who together have deliberated to unanimity.
[Trent, supra, 79 N.J. at 256 (quoting People v. Collins, 552 P.2d 742, 746 (Cal. 1976), cert. denied, 429 U.S. 1077, 97 S. Ct. 820, 50 L. Ed. 2d 796 (1977)).]
A clear and unequivocal instruction is essential to assure that all twelve members of the reconstituted jury deliberate together. Our Court adopted the prescriptions set forth in Collins:
[T]he court [should] instruct the jury to set aside and disregard all past deliberations and begin deliberating anew. The jury should be further advised that one of its members has been discharged and replaced with an alternate juror as provided by law; that the law grants to the People and to the defendant the right to a verdict reached only after full participation of the 12 jurors who ultimately return a verdict; that this right may only be assured if the jury begins deliberations again from the beginning; and that each remaining original juror must set aside and disregard the earlier deliberations as if they had not been had. [Trent, supra, 79 N.J. at 256 (quoting Collins, supra, 552 P.2d at 747).]
Our model criminal jury charge, which the trial court did not give, embodies these dictates.
As you know, Juror #__ was excused from the jury. An alternate juror has been selected to take (his/her) place. The reason that he/she was excused was entirely personal to him/her; it had nothing to do with his/her views on this case or his/her relationship with the other members of the deliberating jury. Please do not speculate on the reason why that juror was excused.
As of this moment, you are a new jury, and you must start your deliberations over again. The parties have the right to a verdict reached by twelve jurors who have had the full opportunity to deliberate from start to finish. The alternate juror has no knowledge of any earlier deliberations. Consequently, the new deliberating jury must start over at the very beginning of deliberations. Each member of the original deliberating jury must set aside and disregard whatever may have occurred and anything which may have been said in the jury room following my instructions to you.
You must give no weight to any opinion expressed by Juror #__ during deliberations before that juror was excused. Together, as a new jury, you must consider all evidence presented at trial as part of your full and complete deliberations until you reach your verdict. [Model Jury Charge (Criminal), "Alternate Juror Empaneled After Deliberations Have Begun" (2005).]
Here, although the judge stated the jury must begin its deliberations anew when he seated the first alternate, he immediately contradicted that direction. He stated, since the new juror did not "have the benefit of all your discussions," the incumbent jurors must "bring [the new juror] up to speed," thereby inviting the incumbent jurors to share their previously expressed viewpoints, observations, and conclusions. Rather than ask the incumbent jurors to set aside and disregard their previous deliberations, the court directed the jurors to share them with the new juror, i.e. bring him up to speed.
The court did not correct the error when it instructed the jury again the next day, after informing the incumbent jurors that a second alternate was seated. Although directing the jury "to begin your deliberations anew," the court qualified that statement by explaining it "was for the benefit of those who were not privy to your prior conversations." Thereby, the court indicated the jury should share the substance of those prior conversations, as opposed to conducting entirely new ones. The invitation to repeat prior conversations was confirmed when the court explained, "You can't have somebody jump in and know everything that you have discussed. So it really gives you an opportunity to rehash the things that you've already discussed as well."
The need for an unambiguous direction to the jury to start anew was heightened by the length of time the jury had deliberated before juror substitution, coupled with its apparent progress in resolving issues evident from its decision to request, and then revise its request, for read backs.*fn7 "The longer the period of time the jury deliberates, the greater is the possibility of prejudice should a juror be substituted or replaced." Miller, supra, 76 N.J. at 407. That increasing risk of prejudice compels increasing scrutiny of the court's instruction.
The two-and-a-half days of deliberations increased the likelihood jurors may have resolved some issues. Incumbent jurors may have found it more difficult than jurors who had been deliberating, for example, for just an hour, to clear their minds of the progress they may already have achieved. Cf. Corsaro, supra, 107 N.J. 352 (referring to when "the deliberative process has progressed for such a length of time . . . the new juror is likely to be confronted with closed or closing minds."). The length of the deliberations also increased the risk that, as newcomers, the jurors would be unable to function on the same level as the incumbents. See Pressler & Verniero, Current N.J. Court Rules, comment 4.3 on R. 1:8-2 (2012) (requirement to instruct jury to begin deliberations anew "implies that deliberations have not progressed so far that the substituted juror would be unable to function as an equal member of the panel").
It also would be pure speculation to conclude that despite the court's lack of clarity in its instruction, the jury did indeed begin deliberations anew, simply because it deliberated another day-and-a-half before rendering a verdict. Certainly, the jury deliberations were not so brief that the failure to deliberate anew was obvious, as in State v. Williams, 377 N.J. Super. 130, 150 (App. Div.), certif. denied, 185 N.J. 297 (2005). However, the reconstituted jury still deliberated a day less than the original jury, did not request read backs or further instructions, and may well have utilized the work of the original jury.
The Supreme Court held in Trent, supra, 79 N.J. at 257, "The absence of any instruction at all on the necessity to recommence deliberations constitutes plain error of such magnitude as to call for the reversal of defendant's convictions." In that case, the Court reversed the conviction where the trial judge instructed the alternate juror "'to continue with deliberations with the jury.'" Ibid. We recognize, in this case, the court attempted to instruct the jury to recommence deliberations, but it nullified that command by contradictorily instructing jurors to continue prior deliberations, to bring the new juror "up to speed," and "to rehash" previous conversations.
We therefore conclude the court did not express in "clear and unequivocal terms," Miller, supra, 76 N.J. at 407, that the jury should begin deliberations anew. As a result, consistent with Trent, supra, reversal is mandated.
We address briefly three issues likely to arise again on remand: the use of evidence of Preston's polygraph; the court's decision to allow note-taking but omit the model jury instructions on the subject; and the court's denial of defendant's motion to exclude Conover's identification of defendant.
We find no error in the court's decision to allow defendant to elicit on cross-examination that Preston has "failed" a polygraph examination before he ultimately admitted he helped dispose of the victim's body, but to bar testimony of the precise questions Preston answered deceptively, according to the polygraph report.
"Considerable latitude is afforded a trial court in determining whether to admit evidence, and that determination will be reversed only if it constitutes an abuse of discretion." State v. Feaster, 156 N.J. 1, 82 (1998), cert. denied, 532 U.S. 932, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001). Consequently, we will disturb an evidentiary ruling only if there has been a "clear error in judgment" or a ruling "so wide of the mark that a manifest denial of justice resulted." Ibid. (citations omitted).
Absent agreement of the parties, polygraph results are inadmissible as evidence that a person was truthful or deceptive. State v. A.O., 198 N.J. 69, 83-86 (2009). Our Supreme Court has observed that polygraph evidence "has an aura of infallibility" which "'can lead jurors to abandon their duty to assess credibility and guilt' and rely instead on the examiner's expert opinion." Id. at 83-84 (internal quotation and citation omitted). A defendant may be permitted to cross-examine a witness as to the fact that she "failed" a polygraph, not for the purpose of establishing the falsity of the particular statement made in the polygraph examination, but to discredit her post-polygraph testimony. Castagna, supra, 187 N.J. at 311-12.
Unlike in McDavitt here the reliability of the polygraph test results was not important. It was Arias's belief that the polygraph test results revealed she had not told the truth in her second statement that was crucial. It was apparent that Arias believed she needed to change her story for the State to accept her statement and to agree to offer her a plea agreement. We hold that the trial court erred in denying defendants the right to cross-examine Arias concerning the polygraph test results, not because those results were reliable, but because the test results caused Arias to change her statement. [Ibid.]
As permitted by Castagna, the trial judge allowed defendant to confront Preston with the fact that he provided police with yet another version of events after police informed him that he was deceptive in his polygraph examination. However, eliciting the precise questions posed would have created the great risk the jury would presume the polygraph itself was reliable, and that defendant's denial that he killed the victim was indeed false. That would have run afoul of the prohibition of polygraph evidence as proof of truthfulness or deception.
Nor are we persuaded by defendant's argument that the court's ruling infringed on his ability to elicit evidence of third-party guilt. Defendant was entitled to present, and did present, evidence of Preston's guilt. See State v. Timmendequas, 161 N.J. 515, 620 (1999) (defendant has constitutional right to present evidence tending to show that a third party committed the crime of which defendant is accused); State v. Loftin, 146 N.J. 295, 345 (1996) ("evidence that tends to create reasonable doubt that someone else, generically, rather than defendant, committed the offense is admissible"); State v. Koedatich, 112 N.J. 225, 300 (1988) (admissibility of third party guilt requires "'some thread capable of inducing reasonable men [and women] to regard the event as bearing upon the state's case'") (quoting State v. Sturdivant, 31 N.J. 165, 179 (1959), cert. denied, 362 U.S. 956, 80 S. Ct. 873, 4 L. Ed. 2d 873 (1960)). Defense counsel argued third party guilt in his opening and summation and the court instructed the jury on third party guilt. Defendant's right to present evidence of third party guilt did not entitle him to present otherwise inadmissible polygraph evidence.
Although the trial court failed to make an individualized determination to allow note-taking, and then failed to provide the required instruction to the jury, we find no plain error. Our Rules expressly authorize a court to permit juror note-taking. R. 1:8-8(b).
Prior to opening statements, the attorneys or any party may request that the jury be permitted to take notes during the trial or portion thereof, including opening and closing statements. If the court determines to permit note-taking after all parties have had an opportunity to be heard, it shall provide the jurors with note-taking materials and shall take such steps as will ensure the security and confidentiality of each juror's notes. [Ibid.]
Prior to adoption of the Rule, the Supreme Court expressly authorized the practice in a notice to the bar, 121 N.J.L.J. Index Page 874 (1988), and we approved the practice in appropriate cases. Wigler v. Newark, 125 N.J. Super. 179, 183 (App. Div. 1973) (stating generally juror note-taking is not improper and "[t]he trial judge has discretion to determine in the first instance if the case lends itself to the practice and to exercise control and direction over the manner in which jurors exercise the right"), certif. denied, 64 N.J. 490 (1974). Although the Court Rule expressly envisions that the parties or their attorneys shall raise the note-taking issue, we see nothing wrong in the court raising the issue, so long as both parties have an opportunity to comment.
However, we have previously observed that the Rule necessarily requires an individualized exercise of discretion, and precludes the adoption of a court's general practice of approving (or disapproving) note-taking. See State v. Jumpp, 261 N.J. Super. 514, 527 (App. Div.) (stating "authorization of juror note-taking should not be interpreted as authorizing the practice in every criminal case as a matter of routine"), certif. denied, 134 N.J. 474 (1993). Indeed, had the rule's drafters intended to approve the practice in all cases, or in all cases of a certain length, they would have said so.
Consequently, the court erred in applying a "personal rule" to permit note-taking in all trials of over a week, without making an individualized determination. Our statement in Jumpp pertains here:
[A]utomatic authorization of juror note-taking is improper, and such practice should not be routinely employed in every case. Moreover, the trial court should have set forth on the record the precise reasons why the practice of juror note-taking was beneficial in light of the factual and legal issues to be presented at trial. [Id. at 527.]
Nonetheless, we find no error, let alone plain error, in the court's decision to permit note-taking. First, although the court referred to a "personal rule," the court also adverted to individualized considerations involving both the length of the trial and the number of witnesses. We are unpersuaded by defendant's argument that this was not a complex case that involved a sole issue of witness credibility. The case involved a complex story-within-a-story of Preston's various versions of what happened. It also involved several instances of prior inconsistent statements of other witnesses. These circumstances justified note-taking, to assist jurors in recalling and organizing the evidence.
Secondly, defendant did not voice any objection to note-taking, nor did defense counsel observe on the record at any point in the trial that a juror was distracted or appeared so engrossed in his or her note-taking that it appeared he or she would be unable to assess a testifying witness's demeanor. Had counsel done so, then the court could have taken corrective action, if warranted, by advising the juror to avoid undue focus on note-taking. Our observation in Jumpp applies here: "There is simply no evidence of confusion, distraction or prejudice caused by juror note-taking in this case which would warrant a reversal of defendant's convictions." 261 N.J. Super. at 527.
Nor do we find harmful error in the court's failure to deliver instructions regarding note-taking, although that oversight should be corrected on remand if note-taking is permitted. Model jury charges provide instructions both when the jury is sworn, to assure jurors avoid undue distraction from note-taking, and at the close of evidence, to assure jurors properly utilize notes in deliberations. The pre-evidence charge states:
During the course of this trial you will be permitted to take notes if you feel this would help you. I emphasize that you are permitted, not required, to take notes. What you do or do not write down is a strictly personal matter with each individual juror. No one else will have a right to see your notes at any time. . . .
The notes of a juror are not evidence. Notes may be used to refresh your recollection, not to replace it. It is important that each of you pay attention to all of the testimony. When a witness is on the stand, do not allow yourself to be distracted by your own note-taking or that of a fellow juror. Your understanding and recollection of the evidence will be more significant than a note. [Model Jury Charge (Criminal), "Note-taking by Jurors (Instructions After Jury Is Sworn)" (1998).]
The post-evidence instruction states:
You are to resolve the factual disputes in this case based upon the evidence presented, which consists of the testimony of witnesses and any exhibits which have been admitted as evidence.
You have been permitted to make notes during the course of this trial. But as I told you before we started, these notes are not evidence. You may use the notes during your deliberations to help you to recall the testimony. However, do not overemphasize the significance of a written note made by yourself or by a fellow juror. It is your recollection, not the note, which should control. If your memory differs, you should rely on your recollection. [Model Jury Charge (Criminal), "Note-taking by Jurors (Instructions Post Evidence)" (1998).]
As defendant apparently did not object, the court's omission was not reversible error, as it was not "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). Although the model instructions are designed in part to warn note-taking jurors to avoid unduly focusing on their note-taking, defendant has pointed to nothing in the record to indicate jurors were distracted by their note-taking. We obviously cannot know whether, absent the post-evidence charge, one juror may have mistakenly deferred to a note-taking juror's recollection of evidence, simply because it was supported by a note. On the other hand, we believe the risk to be slight, inasmuch as the court did deliver the model charge on deliberations, which instructs jurors, "[D]o not surrender your honest conviction as to the weight or effect of evidence solely because of the opinion of your fellow jurors. . . ." Model Jury Charge (Criminal), "Criminal Final Charge -Deliberations" (1994). Nor do we think it likely a juror may have mistaken a note for evidence, given the court's instruction that evidence consists of "[o]nly those items marked in evidence[.]" Ibid. Thus, we discern no prejudice from the court's omission.
Our view is consistent with the clear majority view of other jurisdictions. While endorsing an instruction much like our model instruction, both federal and state courts have found the omission of the instruction is not plain error. United States v. Polowichak, F.2d 410 (4th Cir. 1986); United States v. Rhodes, 631 F.2d 43 (5th Cir. 1980); People v. Griffin, 761 P.2d 103 (Cal. 1988); People v. Ellinger, 754 P.2d 396 (Colo. 1987); People v. Dexheimer, 625 N.Y.S.2d 719 (N.Y. App. Div. 1995); Hanson v. State, 72 P.3d 40 (Okla. Crim. App. 2003); Tracy v. State, 14 S.W.3d 820 (Tex. App. 2000); Hubbard v. State, 892 S.W.2d 209 (Tex. Crim. App. 1995). See also S. Larsen, "Taking and use of trial notes by jury," 36 A.L.R.5th 255, § 9(a) (2011) (cataloging cases finding no plain error where counsel did not request cautionary instruction about note-taking and none was given). But see People v. DiLuca, 448 N.Y.S.2d 730 (N.Y. App. Div. 1982).
Defendant's argument the trial court should have excluded Conover's identification of defendant lacks sufficient merit to warrant extended discussion. We defer to the trial court's findings regarding whether an identification procedure was unduly suggestive. State v. Adams, 194 N.J. 186, 203 (2008) (trial court's findings regarding identification procedure's suggestiveness is "entitled to very considerable weight" and should not be disturbed if supported by sufficient credible evidence) (internal quotation and citation omitted). We have no reason to question the trial court's determination that neither the photo array, nor the manner in which it was presented, was unduly suggestive, particularly inasmuch as the array was presented by an independent police officer; the persons depicted in the array reportedly were all of the same race, a relatively narrow age range, and shared similar braided hair styles, although worn at differing lengths; and defendant chose not to include the array in his appendix. See State v. Madison, 109 N.J. 223, 239 (1988) (To suppress identification, a defendant must demonstrate that police conduct was impermissibly suggestive, and, if so, that the identification procedure resulted in a "substantial likelihood of irreparable misidentification." (internal quotations omitted)).*fn8
The State concedes that defendant's conviction for endangering an injured victim should be vacated and agrees that defendant "should have been acquitted of" that count. We agree.
Given our disposition of the juror substitution issue, we need not reach the remaining issues pertaining to defendant's sentence.
Reversed and remanded.