September 4, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
HUMFREY A. MUSA, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 9, 2013
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 10-06-1471.
Joseph E. Krakora, Public Defender, attorney for appellant (Marcia Blum, Assistant Deputy Public Defender, of counsel and on the brief).
Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Stephen A. Pogany, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).
Before Judges Sapp-Peterson and Nugent.
After a deliberating juror inexplicably failed to return to court to resume the second day of jury deliberations, the court replaced the unexcused juror with an alternate juror and recharged the re-constituted jury. The jury commenced deliberations anew and, after nearly three hours of deliberations, reached a verdict finding defendant guilty of second-degree robbery, N.J.S.A. 2C:15-1. At sentencing, the court imposed a six-year custodial term and additionally imposed fines and penalties. We now reverse.
On appeal defendant raises two points:
THE TRIAL COURT ERRED IN REFUSING TO VOIR DIRE THE JURY AFTER IT ASKED IF IT COULD DISMISS "A PARTICULAR JUROR" AND A JUROR FAILED TO APPEAR THE FOLLOWING DAY[.]
IN VIEW OF THE FACT THE DEFENSE WAS BASED ON MISTAKEN IDENTIFICATION, THE COURT ERRED IN FAILING TO CHARGE ON IDENTIFICATION. (Not Raised Below)[.]
According to the evidence presented, defendant was identified by the victim, Booney Davidson, as one of three or four men walking past him, in the opposite direction, as he was heading home on March 25, 2010. One of the men, whom Davidson later identified as defendant, asked him for money, to which Davidson responded, "You kidding?" Defendant then pushed him up against a fence or a wall, reached in his front pocket, tearing the pocket while pulling out $31. Defendant kept the money and left. Davidson reported the incident minutes later.
Shortly thereafter, police drove Davidson back to the area where he reportedly had been robbed. When he arrived, he observed police detaining four men who met the description he had given to police of the four men who had earlier walked past him. Davidson identified defendant as the perpetrator. A few hours later, he again identified defendant from a photographic array prepared by police.
Trial commenced on February 2, 2012, and the testimonial stage of the trial concluded the next day, at which time the court charged the jury. The jury commenced its deliberations at approximately 11:57 a.m. At 2:30 p.m., the court received a note from the jury inquiring whether a photograph, which had been admitted into evidence, had been taken as part of the investigation, and also whether the shirt defendant was wearing in the photograph was the shirt he had been wearing at the time of his arrest. The court reassembled the jury in the courtroom and answered the questions. The jury retired to resume deliberations at 2:34 p.m.
At 4:18 p.m., the court received another note from the jury. The jury advised the court that it was "still undecided" and wanted to know, "What do we do now?" The jury additionally wanted to know how much time they would be "allotted" that evening, whether a "particular [j]uror [could] be excused from the case, " and whether it could have access to "an easel with a marker." The judge once again reassembled the jurors and explained that since they had been working all day, he was going to adjourn the matter and they would reconvene the next day. He also advised that the court would provide an easel with a marker. Turning to whether a particular juror could be excused, the court remarked:
Generally the answer is no. You have 12, you've been randomly selected, 12 of you heard the case. You have to hear the case and decide the case.
Now if a [j]uror wishes to be excused, it has to be for a good reason, it can't be just because you're not getting along with all the other [j]urors, that's not how it works. But if someone has a particular issue or wishes to be heard [in] regard to a particular issue, you can write us a note tomorrow morning. We'll certainly have the [j]uror come out separately and we'll hear the issue and we'll decide from there.
In open court and so forth, the general answer is no, but we also have alternates which are here, in case somebody becomes ill or some other issues happen or someone has to leave. We have alternates and that's the reason. It has to be for a very particular reason, not just because you're not getting along and you don't want to be here anymore.
The court directed the jury to report the next morning at 9:30 a.m.
When court reconvened the next day, Juror #2 did not report. The judge went on the record at 10:25 a.m. and informed counsel that "Juror [#2] is AWOL. They didn't come back today." He advised counsel that he had sent the jury for a break and they were due back at that time, which was then 11:00 a.m., and expressed his intention to utilize one of the alternate jurors if he could make a determination that the missing juror was not likely to return.
Defense counsel expressed that it had only been a little more than one hour since reporting time and there may have been some kind of emergency with the juror, leading him to contend that "I don't think we've given it enough time. . . . I understand that efforts were made to call the [j]uror at her home and messages were left." The prosecutor requested that the court replace the juror with one of the alternates because the juror was not present and had not reached out to the court.
The judge then detailed the efforts undertaken to contact the juror, including reaching out to the Hudson County Clerk's Office, where the juror said she worked, only to learn that there was no person bearing the juror's name who worked there. The judge advised that he was awaiting further information. Defense counsel at that point inquired, "Do you think under the circumstances, considering the note that the [j]ury sent yesterday, it would be appropriate for Your Honor to send a note into the [j]ury to try to find out if Juror [#2] was the one that they were referring in that note as the uncooperating [j]uror." The prosecutor responded that the court had informed the jurors they could not be excused because "somebody doesn't want to be there." As such, the prosecutor took the position that the court had "answered that question. I think that was resolved yesterday."
The judge agreed and declined to make any inquiries of the jury "at this point [in] time." After personally speaking with the Hudson County Clerk and confirming that Juror #2 was not employed by that office and also confirming that the missing juror was not employed by the Judiciary, the judge seated an alternate juror, noting that nearly two hours had passed since the jurors' 9:30 a.m. reporting time and also noting defense counsel's objection.
The judge recharged the jury and the jury commenced its deliberations anew at 11:28 a.m. The jury announced that it had reached a verdict at 2:20 p.m.
Rule 1:8-2(d)(1) addresses substitution of an alternate juror during trial. The rule states:
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.
The rule seeks to strike the appropriate balance between a defendant's right to a fair trial and judicial economy. State v. Jenkins, 182 N.J. 112, 124 (2004). However, substitution of a juror is prohibited when the juror's removal relates to the deliberative process. Ibid. Specifically, where the basis of the removal relates to underlying problems derived from a juror's interaction with other jurors, removal is not permitted. Id . at 124-25. On the other hand, removal of a juror because of that juror's personal inability to continue with the deliberative process has been upheld in a myriad of circumstances. See, e.g., State v. Williams, 171 N.J. 151, 167, 171 (2002) (upholding removal and replacement of deliberating juror complaining of financial hardship); State v. Miller, 76 N.J. 392, 401, 406-07 (1978) (upholding removal of deliberating juror who sought removal because of his belief that his nervous and emotional condition was "affecting his judgment" and "he did not think he could render a fair verdict"); State v. Holloway, 288 N.J.Super. 390, 404 (App. Div. 1996) (affirming removal of deliberating juror whose "conversation with a relative patently influenced [her]" and who, as such, "disregarded the court's unambiguous admonitions"), overruled in part by, State v. Jenkins, 182 N.J. 112, 133 n.2 (2004); State v. Trent, 157 N.J.Super. 231, 235, 240 (App. Div. 1978) (allowing removal of deliberating juror who was "nervous, " "too emotional, " and suffering from "headache" and nausea because the defendant reminded her of her son), rev'd on other grounds, 79 N.J. 251, (1979).
The circumstances here do not involve substituting an alternate juror for a discharged juror. Rather, the court seated the alternate juror because Juror #2 was absent without the court's permission. We are satisfied the court made appropriate inquiries, based upon the information the juror provided, to determine the juror's whereabouts and that the court did not abuse its discretion in replacing the juror after nearly two hours had elapsed since the 9:30 a.m. reporting time.
The problem here is the court elected not to further explore the initial question. In choosing this option, there was no way to determine whether the juror's failure to return to court was for reasons personal to the juror or due to the juror's interaction with the jury. Indeed, the previous day's question may not have been in any way connected to Juror #2. At a minimum, when the court received the note the previous day, the court should have sought further clarification from the jury why it was asking whether a particular juror could be excused; and, after Juror #2 failed to appear the next day, at a minimum, the court should have questioned the remaining jurors in an effort to determine whether there was any connection between the previous day's question and Juror #2's non-appearance the next day. As the Court stated in State v. Hightower, 146 N.J. 239, 253 (1996):
[T]rial courts do not have unbridled discretion to reconstitute deliberating juries in the face of a jury crisis. On the contrary, the removal rule may be used only in limited circumstances. Clearly, frequent reconstitution of deliberating juries could destroy the integrity and the mutuality of deliberations, thereby depriving defendants of the right to a fair trial by an impartial jury. The "mutuality of deliberations" is at the core of jury deliberations. It entails the joint or collective exchange of ideas among individual jurors that remains intact until a final determination is reached. State v. Corsaro, 107 N.J. 339, 349 (1987). Mutuality may be destroyed if juror substitution is not made in accordance with the limited scope of the rule for removal. Ibid.; R. 1:8-2(d). Therefore, any conduct that could upset the process of jury deliberations, even judicial conduct such as juror substitution, must be carefully scrutinized.
The court's failure to further explore the inquiry when the question was first posed and its subsequent failure to undertake any questioning of the remaining jurors in an effort to gain insight into perhaps why the juror had not returned impedes our careful scrutiny of the propriety of the substitution under these circumstances and therefore requires reversal.
In view of our reversal, upon retrial, the court should charge the jury on identification since identification is a significant issue in this case.
Reversed and remanded for a new trial. We do not retain jurisdiction.