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State v. Brown

Superior Court of New Jersey, Appellate Division

December 27, 2018

STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
SIWAN R. BROWN, a/k/a SHAWN BROWN, Defendant-Appellant.

          Argued November 26, 2018

          On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 15-09-1253.

          Daniel 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).

          Lila 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).

          Before Judges Sabatino, Sumners and Mitterhoff.

          SABATINO, P.J.A.D.

         Tried 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.

         Among 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.

         For the 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.

         In the unpublished portion of this opinion, we affirm the trial court's pretrial ruling to admit incriminating statements that defendant made to police officers after they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.

I.
[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.]

         B.

         The Indictment

         Based 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).

         IV.

         We turn 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.

         A.

         The 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 ...


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