November 26, 2018
appeal from Superior Court of New Jersey, Law Division,
Hudson County, Indictment No. 15-09-1253.
S. Rockoff, Assistant Deputy Public Defender, argued the
cause for appellant (Joseph E. Krakora, Public Defender,
attorney; Daniel S. Rockoff, of counsel and on the brief).
B. Leonard, Deputy Attorney General, argued the cause for
respondent (Gurbir S. Grewal, Attorney General, attorney;
Lila B. Leonard, of counsel and on the briefs).
Judges Sabatino, Sumners and Mitterhoff.
by a jury, defendant Siwan R. Brown was found guilty of
various drug offenses. The State's case was largely based
on the seizure of over one thousand bags of heroin and other
drug paraphernalia from a residence that defendant shared
with other relatives.
other things, defendant argues on appeal the trial court
erred in declining the jury's request during their
deliberations to have the court play back defense
counsel's closing argument for them. The court denied
that request on the basis that, as the Model Criminal Jury
Charges state, the summations of counsel do not comprise
evidence. The propriety of granting such a playback request
from jurors has not been addressed before in any published
New Jersey opinion, although the issue has arisen in case law
from a few other jurisdictions.
reasons that follow, we hold that trial courts in our State
have the discretion in appropriate circumstances to grant
jury requests to have the closing arguments of all counsel
played back or read back to them, in full or in part. In
recognizing that discretionary authority, we follow other
jurisdictions that have acknowledged the discretion of judges
to allow such playbacks or readbacks. We reject, however,
defendant's contention that the denial of the jury's
playback request in his own case was unduly prejudicial and
requires a new trial.
unpublished portion of this opinion, we affirm the trial
court's pretrial ruling to admit incriminating statements
that defendant made to police officers after they stopped his
car for a traffic violation and smelled marijuana. However,
with the State's acquiescence, we remand this case to the
trial court to reevaluate, under the multi-factor
voluntariness test of State v. King, 44 N.J. 346
(1965), whether the police obtained defendant's valid
consent to search his residence after the motor vehicle stop.
We also remand this matter for the trial court to reevaluate
whether the police had a sufficient lawful basis at the time
of the motor vehicle stop to request defendant's consent
to search his residence.
[At this court's direction Parts I(A), (C), II, III, and
V of this opinion, which concern matters not pertinent to the
playback issue in Part IV, have been omitted from the
published version of this opinion. R. 1:36-3.]
on this evidence, a Hudson County grand jury charged
defendant with multiple crimes. The charges included
first-degree operation of a facility for manufacturing
heroin, N.J.S.A. 2C:35-4 (count one); second-degree
possession of heroin with intent to distribute, N.J.S.A.
2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(2) (count two);
third-degree possession of heroin with intent to distribute
while within 1, 000 feet of school property, N.J.S.A. 2C:35-7
(count three); second-degree possession of heroin with intent
to distribute while within 500 feet of a public park,
N.J.S.A. 2C:35-7.l (count four); third-degree possession of
heroin, N.J.S.A. 2C:35-10(a)(1) (counts five and six); and
fourth-degree possession of drug paraphernalia with intent to
distribute, N.J.S.A. 2C:36-3 (count seven).
to the novel legal issue of whether the trial judge had the
authority to grant the deliberating jurors' request to
have defense counsel's closing argument played back or
read back to them. This issue has not yet been the subject of
any reported opinions in our State.
chronology pertinent to this playback issue is as follows.
The jurors were read the court's charge on Friday,
September 16, 2018. After some deliberations, the jurors
submitted a question to the court that day that read:
"The jury wants to confirm if [defendant] admitted and
officially [sic] that he had two bundles in his pocket. Who
alleges that [defendant] said this?" The trial judge
informed the jurors that he could ...