Submitted: October 2, 2013.
Approved for Publication May 2, 2014.
On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 07-11-1010.
Joseph E. Krakora, Public Defender, attorney for appellant ( Karen E. Truncale, Assistant Deputy Public Defender, of counsel and on the brief).
John J. Hoffman, Acting Attorney General, attorney for respondent ( Jennifer E. Kmieciak, Deputy Attorney General, of counsel and on the brief).
Before Judges FUENTES, FASCIALE and Haas. The opinion of the court was delivered by FUENTES, P.J.A.D.
[435 N.J.Super. 452] FUENTES, P.J.A.D.
Defendant Wedpens Dorsainvil was indicted by a Union County Grand Jury and charged with first degree murder of Jamillah Payne, N.J.S.A. 2C:11-3(a)(1), (2); first degree conspiracy to commit murder, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:11-3; first degree attempted murder of Khalid Walker, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3(c); third degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); second degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); third degree conspiracy to distribute cocaine and/or heroin, N.J.S.A. 2C:5-2, N.J.S.A. 2C:35-5(a)(1), [435 N.J.Super. 453] and N.J.S.A. 2C:35-5(b)(3); and second degree possession of a firearm during the commission of a drug-related offense, N.J.S.A. 2C:39-4.1(a).
Tried before a jury over a period of eight days, defendant was found guilty of first degree conspiracy to murder Payne, second degree aggravated assault of Walker, as a lesser-included offense of first degree attempted murder, second degree possession of a firearm for an unlawful purpose, second degree possession of a firearm during the commission of drug-related offense, third degree unlawful possession of a weapon, and third degree conspiracy to distribute cocaine and/or heroin.
The trial court sentenced defendant to an aggregate term of forty-five years, subject to the eighty-five percent parole ineligibility restriction and subsequent five-year period of parole supervision mandated by NERA. We have opted not to describe in detail the analysis employed by the trial court to arrive at this aggregate sentence because we are satisfied defendant's conviction cannot stand.
Our decision to set aside defendant's conviction is predicated on two interconnected events. The first concerns a physical altercation between two deliberating jurors that occurred during jury deliberations. Physical violence between jurors during deliberations is toxic to the environment of rational discourse we associate with the deliberative process and fundamentally inconsistent with any notion of ordered liberty. A jury verdict contaminated by [435 N.J.Super. 454] such violence is inherently unreliable. The trial court thus committed reversible error in denying defendant's motion for mistrial.
Independent of this error, the coercive measures employed by the trial judge in an attempt to preserve the integrity of the deliberative process were not only ineffective but, in our view, exacerbated the menacing environment caused by the violent episode between the two jurors. No reasonable juror can be expected to perform his or her duties as impartial judges of the evidence adduced at trial under the sweeping court-ordered civility code imposed by the trial court in this case.
We derive the following facts from the record developed before the court, including the evidence presented to the jury at trial.
CORE OF OPERATIVE FACTS
From the State's perspective, this case is about the dangers associated with the business of illicit drug trafficking at the retail level. Jamillah Payne, the nineteen-year-old woman whom the State alleged was shot and killed by defendant and then thrown out of her own fourth-floor apartment window by his co-defendant, was actually part of defendant's own " crew" or drug distribution operation. Payne allowed defendant to use her apartment as a storage and local distribution site and assisted him in packaging the drugs for street-level distribution. As the prosecutor acknowledged in his opening statement to the jury, " Jamillah Payne was part of the drug conspiracy."
In order to provide the jury with an explanation for the events that led to Payne's death, the State called as a witness a man who had been incarcerated with defendant in the Union County jail in 2007 before this case went to trial. This witness also knew Payne [435 N.J.Super. 455] socially, independent of defendant, as " his ex-girlfriend's cousin." According to this witness, defendant told him he was upset with Payne because she was using the apartment as her residence with her son and for other social activities unrelated to the apartment's dedicated purpose as a place to store, package, and distribute illicit narcotics.
More importantly as it relates to this case, the witness said defendant also believed Payne was " hanging around with, basically, her gang member friends, Bloods, if you want to call it." The witness claimed defendant was particularly troubled by Payne's association with Khalid Walker, who defendant believed may have previously broken into the apartment with other gang members " and stolen some money and some drugs." Defendant told the witness he wanted to change the
locks in the apartment " to avoid all situations." In response to the prosecutor's question as to whether defendant " actually . . . beg[a]n to change the locks in the apartment at some point," the witness testified: " Yes . . . [t]he same night all hell broke loose, if you want to call it Jamillah [Payne's] death, let's say."
Thus, under the State's theory of events, Payne's untimely death was the result of conflicts between local drug " crews" operating in the same apartment building and sharing the same [435 N.J.Super. 456] territory. Payne unintentionally set in motion the chain of events that caused her death by socializing with rival gang members and raising defendant's suspicions by using the apartment as an actual residence, not just a drug warehouse.
The first link of this chain was forged when Payne phoned W.S. on the evening of July 13, 2006, and asked him to come to her fourth-floor apartment. W.S. was a member of the " Bloods," and operated a rival illicit drug crew in an apartment located on the third floor in the same building. He testified Payne sounded " disturbed" when she spoke to him on the phone that evening. According to W.S., when he arrived, Payne, defendant, and four other men were already in the apartment. Payne did not respond to W.S.'s inquiries about what prompted her to ask him to come to the apartment. W.S. testified that at some point shortly after his arrival, defendant went into the kitchen area of the apartment and quickly returned with a handgun in his hand. Defendant then fired one shot into the floor.
As a reflexive action, presumably based on an instinctive reaction or as a last desperate measure to avoid being shot, W.S. jumped out of one of the windows of Payne's fourth-floor apartment; he fractured his pelvis, punctured a lung, and fractured a hand. W.S. heard three more gunshots while on the ground. He thereafter saw Payne plunge from one of the windows of the apartment. We note W.S.'s perception of events may have also been impaired by other factors in addition to his injuries. Specifically, W.S. testified he was under the influence of alcohol and illicit narcotics at the time.
[435 N.J.Super. 457] The State called as witnesses a number of other individuals who were also in the apartment building on the night of the shooting. D.K. testified he saw Payne " hanging from a window," and saw Barthelus push Payne out of her apartment window. On cross-examination, however, D.K. conceded to giving conflicting accounts of what he saw regarding the incident. Although he testified at trial to seeing Barthelus's face as he pushed Payne out of the window, he had previously stated he did not see Barthelus's face that night and was only able to identify him by the unique marks on his arms.
M.M. was also a resident of the building where Payne had her fourth-floor apartment. M.M. testified to hearing multiple gunshots, " loud noises and flashes, and a lot of commotion" on the evening of July 13, 2006. She saw a number of individuals running down the building's fire escape. M.M. identified Barthelus as one of the individuals she saw run down the fire escape and head toward her apartment.
Khalid Walker, a man identified by the State's jail house informant as " a high ranking member" of the rival crew that intended to move into the fourth-floor apartment, was inside Payne's apartment on the night of the shooting and was himself shot in one of his legs. His testimony proved to be problematic, however, because by the time this matter reached trial, Walker had recanted his previous statements and was unwilling to cooperate with the State. Making matters even more difficult, Walker, who was at the time serving a sentence in State prison on an unrelated matter, refused to wear the civilian attire provided to him by the State and insisted on taking the stand as a witness wearing his inmate garb.
Defense counsel did not object to Walker testifying while wearing his inmate uniform; she believed Walker's attire would likely undermine his credibility as a witness for the State because it would provide the jury with visual evidence of his past criminal [435 N.J.Super. 458] transgressions. After discussing the matter with the attorneys in the case, the trial judge decided to permit Walker to testify wearing prison garb.
Despite this accommodation by the court, Walker refused to testify. The record reflects the judge explained to Walker the consequences of his refusal to testify outside the presence of the jury. Specifically, the judge apprised Walker that he would be held in contempt, remanded to the county jail until compliant, and the time spent in the county jail on the contempt citation would not be credited to his unrelated State prison sentence. After this explanation, the prosecutor asked Walker a series of basic questions to lay the foundation for his trial testimony. Walker's answers were either unresponsive or clearly indicative of his continued refusal to testify.
After further discussion with the attorneys, the judge once again engaged Walker directly. The judge again made clear the consequences of his behavior. When Walker made clear his willingness to remain defiant, the judge held him in contempt. The judge again emphasized to Walker he would remain in the county jail " until you testify under oath." After some reflection and interaction with the judge, Walker acceded.
Walker testified that on the night of the incident, he was shot in the leg while he was in the bathroom talking on his cell phone. He did not know who shot him. Police records show that Walker stated individuals in the apartment were arguing about drugs and that " Cam" (a nickname used for defendant) had shot him. Walker also provided the police with a description of his assailant. At [435 N.J.Super. 459] trial, Walker testified that none of the information he provided to the police in 2006 was correct and claimed the police " coerced" him into giving a statement. After considering the relevant standards and applicable legal principles, the trial judge granted the
State's motion to play to the jury the videotaped statement Walker gave the police in 2006 as a prior inconsistent statement.
City of Elizabeth Police Officer William Deegan was one of the officers who responded to the shooting incident that night. Immediately upon his arrival, Deegan saw a woman, later identified as Payne, lying dead on the sidewalk. He was compelled to use force to enter apartment 4H because the door was locked. Deegan described the interior of apartment 4H as " barren," with " blood on the right-hand side of the wall by the doorway." He also entered apartment 4A, the next apartment over from 4H, and observed that the screen looked forced in, and there was blood on the counter, the door, and a set of keys he found on the floor.
Forensic investigators who processed the crime scene in Payne's apartment recovered three pieces of ballistic evidence in the form of a spent casing found in the kitchen, and two projectiles -- one found in the bathroom and one in the " mid-room." Detective Gary Mayer was admitted by the court as an expert in field of [435 N.J.Super. 460] forensic ballistics. Mayer classified the spent projectiles as .38 caliber and the spent casing as discarded by a .25 caliber round.
R.G., her daughter, and G., the child's father, resided in another fourth-floor apartment located in the same building. All three were home on the night of July 13, 2006. R.G. testified that the child's father was addicted to heroin and had used heroin that night. G. had been incarcerated on past occasions due to his addiction and related problems.
R.G. found herself " in a really, really financial bind" during the times G. had been detained. In a misguided attempt to ameliorate her financial problems, R.G. worked for defendant during her difficult times by holding his drugs in her apartment and packaging the drugs for retail sale. Her involvement was limited to handing the drugs to other " guys" who " would come or call."
According to R.G., defendant called her at approximately ten o'clock in the evening on the night of the shooting and asked her to open the door. She heard " a lot of commotion" as she approached to open the door. She described defendant as " very scattered, like, out of breath, like nerves, and he wanted to come in, and he had blood on his shirt" when she opened the door. Defendant also " had guns with him." When R.G. asked him what happened, defendant allegedly responded: " I had to do it. I had to do it." Pressed by R.G. to elaborate on what he meant by " it," defendant responded: " Milla," meaning Jamillah [Payne] . . . . I had to do it." R.G. testified defendant told her Payne " knew too much and that if it didn't go down that way that she would have took (sic) everybody down." Defendant was not visibly injured.
R.G. gave defendant " a blue shirt and jeans" for a change of clothes and " discarded" what he was wearing. R.G. also saw defendant " discard" two guns he placed on her kitchen table by wrapping
them in a garbage bag and placing them inside R.G.'s garbage can. She threw the garbage bags away on her way to a restaurant. R.G. gave a statement to police on June 6, 2007, and identified defendant as the person who had come to her apartment on the night of July 13, 2006.
[435 N.J.Super. 461] Defendant also called S.W. on the night of the shooting. S.W. had known defendant for approximately six years and knew he kept drugs at Payne's apartment. S.W., as a witness for the State, said defendant told her to go to his house and " get rid of anything that didn't belong there." She removed his Social Security card and identification documents from his home.
S.W. and defendant bought a Jeep Cherokee from a used car lot early the next morning. S.W. put the title to the car in her name. After buying some " stuff for the car" and getting a tune-up, defendant, S.W., Barthelus, and two other individuals drove out of New Jersey on their way to Georgia. According to S.W., defendant did not have any extra clothes with him, and the other passengers did not have big suitcases.
On the morning of July 15, 2006, South Carolina Police Officer Brock Horton stopped a 1998 Jeep Cherokee with temporary New Jersey plates on Interstate 95. The vehicle was travelling at approximately ninety-two miles per hour, which was above the local speed limit. The parties stipulated at trial that defendant was a passenger in the vehicle and intentionally misidentified himself as " Ken Mathews." The driver and the other men in the car were unable to provide Horton with appropriate identification. Horton identified defendant as a passenger in the vehicle he stopped. Co-defendant Barthelus was also in the car at the time of the stop.
After the alternate jurors were selected and segregated, the jury began deliberating sometime in the afternoon of July 8, 2009. The court received the first note or question from the jury later that afternoon. Although the record does not reflect any other communication from the jury before this one, the trial judge [435 N.J.Super. 462] marked this note " C-10."  As read into the record by the judge, the jury asked for
clarification regarding Page 45 of the charge. Does this page, act of a co-conspirator, apply to only the conspiracy to commit the murder of Jamillah Payne charge but does Page 45 also apply to the other charges, including the murder charge?
The record before us shows the judge responded to the jury's query in C-10 without first consulting with the attorneys to obtain their input and determine whether they had any objections to the manner the court responded to the question.
The next communication from the jury, marked C-11, was also sent on the afternoon of the first day of deliberations. As read into the record by the judge, C-11 stated:
" According to Page 45, if a person is legally accountable for the conduct of
another person" --then they are saying, " including murder" --that is a reference to my prior instruction to them, " when he's engaged in a conspiracy, does this mean the person is accountable or guilty of murder" ?
In contrast to the manner in which the judge proceeded in responding to the question raised in C-10, the record shows the judge ultimately responded to the question in C-11 after he solicited comments and suggestions from the attorneys outside the presence of the jury and considered their concerns. Because it was almost 4:00 p.m. by the time the jurors' question was addressed, the judge decided to excuse the jury for the day. The judge instructed the jurors not to discuss the case with anyone and not to resume deliberations until they were all together the following morning at nine o'clock.
[435 N.J.Super. 463] Although technically the second day of deliberations, July 9, 2009 was actually the first time the jurors had a full day to deliberate. Shortly after the jury began deliberating that morning, the judge acknowledged the receipt of a note from Juror 16, which the court marked C-13. As read by the judge, the note indicated Juror 16 had " scheduled vacation for 7/10/09. So I would be grateful if I can be excused from the jury." Because the attorneys were not yet present, the judge told Juror 16 he would discuss the issue with the lawyers and directed him to return to the jury room and resume deliberations until otherwise instructed by the court.
Defense counsel was the first attorney to comment on this issue. She noted that Juror 16 did not mention anything about a possible vacation conflict during voir dire. Both the judge and the prosecutor concurred with defense counsel on this point. The prosecutor noted, however, that based on what was said to the prospective jurors during voir dire about the possible length of the trial, it was reasonable for Juror 16 to have expected the trial to have ended the previous week. The judge nevertheless emphasized that it was clear from the manner in which the case progressed that the case would continue beyond the previous week.
The judge was particularly concerned about Juror 16's ability to consider the evidence carefully and fairly. As the judge noted, " [s]uppose he says, 'I'm leaving. I have a prepaid vacation with my whole family and I should be home packing, doing this, that. I can't concentrate, I can't focus.'" Without objection from counsel, the judge brought Juror 16 back to the courtroom to inquire further about his vacation plans.
In response to the judge's request to explain " a little more," Juror 16 said: " I'm going away on vacation tomorrow . . . [to the] Bahamas." The judge then asked the juror whether " that, in any way, interfere with your deliberating today?" Juror 16 answered: " No." The judge nevertheless persisted:
[435 N.J.Super. 464] THE COURT: But I want to make clear what is in that question, and that is, you are going to be able to stay focused and concentrate and not, in any way, feel rushed?
JUROR : No.
After conferring with counsel at sidebar, the judge directed Juror 16 to return to the jury room and stated: " [W]e'll deal with it in the afternoon, if necessary."
Violence In The Jury Room
At 2:27 p.m. on July 9, 2009, the judge received another written communication
from the jury. We pause here to note that the record reflects the judge did not discuss the jury's note with the attorneys before deciding to take this course of action. The judge brought the jury into the courtroom and made the following statement:
THE COURT: I'm going to read the note you sent me for the benefit of the alternates. The note reads, " Your Honor, at this point the jury is hopelessly deadlocked. The jury is finding it impossible to make further progress to make a unanimous decision on any Count ."
I'm, basically, going to ask you to go in and try again. I would--I'm going to read to you from Page 71 and 72 of the jury instructions.
The judge then reread to the jury the section of the standard model charge on " deliberations," which, inter alia, admonishes each juror to consider the evidence impartially and deliberate " with a view to reaching an agreement, if you can do so without violence to individual judgment." After reading this two-paragraph long statement, the judge addressed the jury as follows:
So what I'm asking you to do is go back into the jury room, reexamine your positions, listen to what the other jurors have to say, and give it another try. All right? I'm asking you deliberating jurors to go back in the jury room.
[435 N.J.Super. 465] The entire event took three minutes, including the time consumed by the judge reading the jury's note announcing it was " hopelessly deadlocked."
After the jury left the courtroom, the judge asked a Sheriff's Officer the following questions:
THE COURT: Sergeant, I want you to describe for the record what you observed, what you heard, and what happened.
THE SHERIFF'S OFFICER: There was a knock on the door. Officer Karlick (Phonetic) entered the jury room ahead of me. I believe one of the jurors--I'm not sure who it was--handed him a note.  There was a heated argument between two jurors. I asked them to please just sit down, calm down. The argument escalated .
One of the jurors, I believe it was the young lady--one of the jurors sitting outside wanted to go for a cigarette. It sounded like a good idea because she was one of the parties involved in this argument .
In the best interests -- in the interests of all these women, I told Officer Karlick to take them for a cigarette, and then the other jurors sat down.
It was a heated, heated argument. They were both standing up .
THE COURT: This is the note that I have. We don't know who wrote it .
THE SHERIFF'S OFFICER: The two jurors are still sitting outside .
THE COURT: Have those two jurors go back in .
All twelve jurors returned to the jury room without any instructions from the court as to whether they should resume deliberations. At this point, the judge addressed the attorneys on the record about how he planned to respond to the report of a " heated argument" between two deliberating jurors.
THE COURT: I propose the following: Bring the jurors out, tell them that I want them to fully deliberate and fully discuss any and all issues that they think are to be discussed, but they are to treat each other with respect and courtesy, and send them back to continue deliberating.
Anybody want to be heard on that?
I'm also--I've also told the Sheriff's Officers that they are not to go into the jury room to collect a note, or something like that, unless they come to me, first.
[435 N.J.Super. 466] [DEFENSE COUNSEL]: Yes, Judge.
THE COURT: My proposal acceptable to everybody?
[PROSECUTOR]: Yes, your Honor.
[DEFENSE COUNSEL]: Does the Court-- the Court is not going to inquire as to who wrote the ...