State of New Jersey v. Kalil Griffin , 449 N.J. Super. 13 ( 2017 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3491-15T2
STATE OF NEW JERSEY,
APPROVED FOR PUBLICATION
Plaintiff-Appellant, February 27, 2017
v. APPELLATE DIVISION
KALIL GRIFFIN,
Defendant-Respondent.
_____________________________
Argued October 6, 2016 - Decided February 27, 2017
Before Judges Alvarez, Accurso and Higbee.1
On appeal from Superior Court of New Jersey,
Law Division, Monmouth County, Indictment
No. 12-05-0857.
Mary R. Juliano, Assistant Prosecutor,
argued the cause for appellant (Christopher
J. Gramiccioni, Monmouth County Prosecutor,
attorney; Ms. Juliano, of counsel and on the
brief).
James K. Smith, Jr., Assistant Deputy Public
Defender, argued the cause for respondent
(Joseph E. Krakora, Public Defender,
attorney; Mr. Smith, of counsel and on the
brief).
1
Hon. Carol Higbee participated in the panel that decided this
appeal. The opinion was approved for filing prior to Judge
Higbee's death on January 3, 2017.
The opinion of the court was delivered by
ACCURSO, J.A.D.
Hours after the jury convicted defendant Kalil Griffin of
felony murder, N.J.S.A. 2C:11-3a(3); first-degree robbery,
N.J.S.A. 2C:15-1; second-degree unlawful possession of a
handgun, N.J.S.A. 2C:39-5b; and second-degree possession of a
handgun for an unlawful purpose, N.J.S.A. 2C:39-4a, defense
counsel received a call from one of the jury alternates. The
alternate claimed that during the trial, several jurors
routinely met to discuss the case notwithstanding the judge's
instructions that they not do so. She claimed she heard the
juror who organized these discussions say he was going to make
sure defendant did not "get off" like his co-defendant.
The jurors were aware the co-defendant had been acquitted
of the same charges in an earlier trial. Not only had they been
advised of that fact in opening statements, the co-defendant
testified on behalf of the State that he had been tried and
acquitted. The alternate indicated to defense counsel that the
jurors participating in the discussions had decided to vote
guilty before they retired for deliberations. She claimed two
other jurors also heard these discussions, prompting one of them
to ask that she be allowed to serve as an alternate and not
participate in deliberations.
2 A-3491-15T2
Defense counsel recounted his conversation with the caller
in a certification filed in support of his motion for a "hearing
on juror misconduct" filed several days after the verdict.2 The
2
Defense counsel's certification stated in pertinent part:
1. I represent the defendant in the above
referenced matter.
2. On October 22, 2015[,] Kalil Griffin was
convicted by jury of felony murder . . . .
3. Shortly after the verdict, I received a
phone call from an alternate juror named
[the alternate].
4. [The alternate] indicated that during
the testimonial phase of the trial[,]
several jurors, apparently organized by
Juror #2, . . . , would meet downstairs and
routinely discuss the case despite the
[c]ourt's admonitions.
5. [Juror #2] was heard to say that he was
going to make sure this defendant (Griffin)
would not "get off" like the codefendant.
6. [The alternate] indicated that [Juror
#2's] organized group of jurors decided to
vote guilty even before summations were
heard.
7. This prompted Juror #3, . . . , to
request to be an alternate.
8. Also, . . . , another alternate juror[,]
heard these improper conversations between
[Juror #2] and other jurors that took place
prior to deliberation.
9. Coincidentally, or perhaps not so,
another juror called the [c]ourt on the day
(continued)
3 A-3491-15T2
trial judge who presided over the four-week trial unfortunately
retired without hearing the motion. Another judge heard the
motion almost five months after entry of the verdict. At the
conclusion of argument, that judge determined, based on the
"irregularities alleged," to interview the caller and the other
alternate who allegedly heard the improper conversations, on the
record with counsel present.3
We granted the State's emergent application for leave to
file an interlocutory appeal from the ensuing order. Applying a
(continued)
of deliberations to say she had car trouble
and could not make it to court.
10. For these reasons, it is urged that this
[c]ourt conduct a hearing on juror
misconduct to determine if certain jurors
pressed for a guilty verdict "prior to
deliberations[.]" See State v. McLaughlin,
310 N.J. Super. 242 (App. Div. 1998) and
State v. Scherzer, 301 N.J. Super. 363 (App.
Div. 1997).
11. I did not solicit any of the above
allegations from [the alternate], nor have I
spoken to any jurors named in this
certification.
3
The judge initially indicated he would also interview the
deliberating juror who had asked to serve as an alternate, "not
as to her deliberations but why she" asked the trial judge to
allow her to serve as an alternate. The judge apparently
reconsidered that decision as his order limits the interviews to
the two alternate jurors.
4 A-3491-15T2
de novo standard of review,4 see Nicholas v. Mynster, 213 N.J.
463, 478 (2013), we now reverse, finding no good cause for the
court to interview these two alternate jurors post-verdict. See
R. 1:16-1; State v. LaFera, 42 N.J. 97, 105-07 (1964).
As the Supreme Court has recently made abundantly clear,
"under no circumstances may post-verdict discussions
occur between the court and discharged jurors, unless those
discussions are part of a hearing ordered on good cause shown
pursuant to Rule 1:16-1."5 Davis v. Husain, 220 N.J. 270, 274
(2014). "Calling back a jury for questioning following
discharge is an 'extraordinary procedure,' to be utilized 'only
4
The issue we review is whether there was good cause to permit
the post-trial interrogation of jurors pursuant to Rule 1:16-1
based on defense counsel's certification relating the
allegations of an alternate juror. The question presented is
one of law on undisputed facts making de novo review
appropriate. We thus reject defendant's view that we should be
applying an abuse of discretion standard applicable to a judge's
mid-trial determination of the appropriate course of action upon
a showing of premature deliberations by jurors. See State v.
McLaughlin, 310 N.J. Super. 242, 256-57 (App. Div.), certif.
denied, 156 N.J. 381 (1998).
5
Rule 1:16-1 provides:
Except by leave of court granted on good
cause shown, no attorney or party shall
directly, or through any investigator or
other person acting for the attorney,
interview, examine, or question any grand or
petit juror with respect to any matter
relating to the case.
5 A-3491-15T2
upon a strong showing that a litigant may have been harmed by
jury misconduct.'" Id. at 279 (quoting State v. Athorn, 46 N.J.
247, 250, cert. denied, 384 U.S. 962, 86 S. Ct. 1589, 16 L. Ed.
2d 674 (1966)).
Although the Court's reminder is recent, the reasons for
not permitting inquiry into a jury's secret deliberations for
the purpose of invalidating a verdict were established many
years ago.
If verdicts could be easily set aside as a
result of an investigation into secret jury
deliberations, disappointed litigants would
be encouraged to tamper with jurors, to
harass them and to employ fraudulent
practices in an effort to induce them to
repudiate their decisions. Moreover, an
open invitation would be extended to any
disgruntled juror who might choose to
destroy a verdict to which he had previously
assented.
[Athorn, supra, 46 N.J. at 250.]
Clearly, jury secrecy is essential to protect the
deliberative process itself. Id. at 251. "A jury deliberates
in secrecy to encourage each juror to state his thoughts, good
and bad, so that they may be talked out." LaFera, supra, 42
N.J. at 106. "Freedom of debate might be stifled and
independence of thought checked if jurors were made to feel that
their arguments and ballots were to be freely published to the
6 A-3491-15T2
world." Clark v. United States, 289 U.S. 1, 13, 53 S. Ct. 465,
469, 77 L. Ed. 993, 999 (1933).
The United States Supreme Court described the tension
facing a court presented with the post-trial affidavit of a
juror claiming misconduct of himself or other members of the
jury as forcing a choice "between redressing the injury of the
private litigant and inflicting the public injury which would
result if jurors were permitted to testify as to what had
happened in the jury room." McDonald v. Pless, 238 U.S. 264,
267, 35 S. Ct. 783, 784, 59 L. Ed. 1300, 1302 (1915).
Although acknowledging "the argument in favor of receiving
such evidence is not only very strong but unanswerable – when
looked at solely from the standpoint of the private party who
has been wronged by such misconduct," the Court found permitting
such evidence "'would open the door to the most pernicious arts
and tampering with jurors. The practice would be replete with
dangerous consequences. It would lead to the grossest fraud and
abuse and no verdict would be safe.'" Id. at 268, 35 S. Ct. at
784-85, 59 L. Ed. at 1302 (quoting Cluggage v. Swan, 4 Binn.
150, 158 (Pa. 1811); Straker v. Graham, 4 M. & W. 721, 725-26,
150 Eng. Rep. 1612, 1613-14 (1839)) (internal quotation marks
omitted).
7 A-3491-15T2
The Court explained the rule, which is now almost
universally applied, against receiving such evidence from jurors
is ultimately "based upon controlling considerations of a public
policy which in these cases chooses the lesser of two evils."
Id. at 267, 35 S. Ct. at 784, 59 L. Ed. at 1302; see also Tanner
v. United States, 483 U.S. 107, 120, 107 S. Ct. 2739, 2747, 97
L. Ed. 2d 90, 106 (1987) ("There is little doubt that post-
verdict investigation into juror misconduct would in some
instances lead to the invalidation of verdicts reached after
irresponsible or improper juror behavior. It is not at all
clear, however, that the jury system could survive such efforts
to perfect it.").
"The essence of R. 1:16-1 is recognition of the need to
'insure free debate in cases to come,' and to 'prevent the
unsettling of verdicts after they have been recorded.'" State
v. Loftin, 287 N.J. Super. 76, 109 (App. Div.) (internal
quotations omitted), certif. denied, 144 N.J. 175 (1996). The
rule's prohibitions, however, are not absolute, because "cases
do arise where 'the plainest principles of justice' demand that
a new trial should be directed upon a proper showing." Athorn,
supra, 46 N.J. at 251 (quoting Mattox v. United States, 146 U.S.
140, 148, 13 S. Ct. 50, 52, 36 L. Ed. 917, 920 (1892)).
8 A-3491-15T2
The Court has recognized two exceptions to the general rule
against disturbing a jury's verdict because of what a juror may
have said during deliberations, both of which would constitute
"good cause" under Rule 1:16-1 to call back a discharged juror
for questioning: first, where a juror "informs or misinforms
his or her colleagues in the jury room about the facts of the
case based on his personal knowledge of facts not in evidence"
and second, where racial or religious bigotry is manifest in
deliberations. State v. Koedatich, 112 N.J. 225, 288 (1988),
cert. denied, 488 U.S. 1017, 109 S. Ct. 813, 102 L. Ed. 2d 803
(1989).
The strictness with which these exceptions are applied is
best demonstrated by the facts of Athorn. Athorn was a Newark
police officer convicted by a jury of extortion and misconduct
in office. 46 N.J. at 249. About a month after the verdict,
the prosecutor advised the court he had been contacted by a
juror in the case claiming the verdict had been improperly
rendered. Ibid. The trial judge summoned the juror to appear
in open court in the presence of the prosecutor and defense
counsel to hear the juror's allegations. Ibid.
The juror asserted several improprieties. He claimed that
some jurors asserted "cops take bribes," citing newspapers as a
source, that other jurors harangued him when he refused to vote
9 A-3491-15T2
guilty, and that he was tricked into finally voting to convict
by a fellow juror "who seemed to agree with him that the
defendant was innocent but who then cast his vote for guilty."
Id. at 249-50. The juror also claimed to have misunderstood the
trial court's instructions regarding the necessity of a
unanimous verdict. Id. at 250. He claimed he had never heard
of a hung jury and that had he realized the possibility, he
would never have changed his vote to guilty. Ibid. Based on
the juror's statements, the trial judge determined to interview
the remaining jurors about the allegations and issued an order
to that effect. Ibid.
As in this case, we stayed the order in Athorn and granted
the prosecution's motion for leave to appeal. Ibid. While the
case was pending in this court, the Supreme Court certified the
case for direct review and reversed. Id. at 249-50.
The Court concluded the juror's allegations, "even if they
were to be substantiated by the testimony of the other jurors,
would [not] be a sufficient basis on which the conviction could
be set aside," and thus the order recalling the jurors had to be
reversed. Id. at 250. Because nothing in the juror's testimony
"suggest[ed] that a juror had expressed personal knowledge of
any facts concerning the defendant which were not adduced in
evidence," and the statement that "cops take bribes," could not
10 A-3491-15T2
be read as any "manifestations of bias against the defendant
because he was a police officer," the Court found "no reason for
departing from the general rule" against inquiring into jury
deliberations. Id. at 252.
Here, as in Athorn, because the alternate's allegations as
set forth in defense counsel's certification, even if
substantiated, would not support setting aside the conviction,
the trial court erred in ordering the discharged jurors back for
questioning. There is nothing in defense counsel's
certification recounting his conversation with the alternate to
suggest that any juror expressed personal knowledge of facts
about defendant or his co-defendant's acquittal not adduced in
evidence. Neither did the alternate claim, or even suggest,
that juror No. 2's comment "that he was going to make sure this
defendant (Griffin) would not 'get off' like the codefendant,"
had any racial overtone. Although defense counsel advised the
judge hearing the motion that the alternate is African-American,
as is defendant, and that the remainder of the jurors were
white, we can draw nothing from those facts, and certainly not
that racial bigotry was manifest in the jury's deliberations.
Defendant has thus not presented any proof of actual bias
infecting the jury's deliberations.
11 A-3491-15T2
Defendant argues on appeal that evidence of outside
influence on the jury and racial or religious animus are not the
only exceptions permitting inquiry into jury deliberations. He
contends the Court has also set aside a jury verdict when jurors
expressed an intent to vote guilty before hearing all the
evidence, and emphasizes the allegations here relate to juror
misconduct occurring prior to deliberations. Finally, he notes
the judge's order, limited as it is to calling back only non-
deliberating jurors, does not infringe the secrecy of
deliberations and should be upheld for that reason as well. We
reject those arguments.
The case on which defendant relies in asserting that a
juror's expressed intention to vote guilty before hearing all
the evidence provides "good cause" under Rule 1:16-1 to question
jurors about misconduct is State v. Loftin, 191 N.J. 172, 196
(2007). Loftin, however, a capital case in which a non-
deliberating juror made racially freighted comments to co-
workers during the guilt-phase of the defendant's trial, is not
a case arising under Rule 1:16-1.6 Id. at 179, 185.
6
Although Loftin's post-conviction relief counsel made an
application for the trial court to interview the guilt-phase
jurors pursuant to Rule 1:16-1, the request was not based on
information received from a juror post-verdict but on the trial
court's failure to immediately remove the biased juror at trial
and voir dire the remaining jurors regarding his comments.
(continued)
12 A-3491-15T2
In Loftin, the court was advised in the course of the trial
that a white juror told two African-American co-workers he was
going to the hardware store to buy a strong rope to hang the
defendant, an African-American man charged with murdering a
white man. Id. at 179, 183-84. Accepting the juror's
representation that he had not prejudged the defendant's guilt,
the trial judge declined to remove him from the jury. Id. at
179. The juror was permitted to sit with his fellow jurors
throughout the guilt-phase trial, ultimately serving as an
alternate. Ibid.
Loftin was convicted and sentenced to death. Ibid. The
Court affirmed the conviction and sentence on direct appeal,
State v. Loftin, 146 N.J. 295, 318 (1996) (Loftin I), and upheld
Loftin's sentence on proportionality review, State v. Loftin,
157 N.J. 253, 266 (Loftin II), cert. denied, 528 U.S. 897, 120
S. Ct. 229, 145 L. Ed. 2d 193 (1999).
On appeal from the denial of Loftin's petition for post-
conviction relief, however, the Court vacated Loftin's
conviction and death sentence and remanded for a new trial,
(continued)
Loftin, supra, 191 N.J. at 199. The precise holding of the case
is "that the deficient performances of both trial and appellate
counsel [in failing to adequately address the juror's bias and
its effect on the panel's impartiality] denied defendant the
assistance of reasonably competent counsel guaranteed to him
under Article I, Paragraph 10 of our State Constitution." Ibid.
13 A-3491-15T2
finding "no room in a capital trial for a juror who expresses a
preconceived opinion of a defendant's guilt," made "[e]ven more
alarming . . . when the juror's remarks prejudging guilt also
suggest racial bias." Loftin, supra, 191 N.J. at 179-80. The
Court found the trial judge erred in not removing the juror from
the jury panel as soon as the court confirmed he made the
statement: "'I'm going to the hardware store to get me a good
rope so when we hang [defendant], it won't break,'" and in
failing "to ensure that he did not infect the impartiality of
the entire panel." Id. at 191-92.
We think Loftin clearly distinguishable from the situation
that confronted the trial court here. Leaving aside that Loftin
was a capital case "in which heightened standards of procedural
fairness are applied," the misconduct of the juror there was
brought to the court's attention mid-trial. Id. at 192. A
trial judge's obligations vary significantly depending on when
the allegation of juror misconduct is made.
In order to protect a criminal defendant's Sixth Amendment
right to trial by an impartial jury, a judge faced with an
allegation of juror misconduct before the verdict "must act
swiftly to overcome any potential bias and to expose factors
impinging on the juror's impartiality." State v. R.D., 169 N.J.
14 A-3491-15T2
551, 558 (2001); see also State v. Bisaccia, 319 N.J. Super. 1,
14 (App. Div. 1999).
The court is obliged to interrogate the
juror, in the presence of counsel, to
determine if there is a taint; if so, the
inquiry must expand to determine whether any
other jurors have been tainted thereby. The
trial court must then determine whether the
trial may proceed after excusing the tainted
juror or jurors, or whether a mistrial is
necessary.
[R.D., supra, 169 N.J. at 558.]
In contrast, a trial judge presented with a complaint of
juror misconduct post-verdict may invoke the "extraordinary
procedure" of interrogating jurors "only upon a strong showing
that a litigant may have been harmed by jury misconduct."
Athorn, supra, 46 N.J. at 250. The distinction, of course,
being the entry of the verdict. The "strong policy reasons" of
preventing disappointed litigants from tampering with jurors and
disgruntled jurors from destroying a verdict have caused courts,
with defined exceptions, to refuse "'to accept from jurors, for
the purpose of impeaching a verdict, any evidence of the
discussion which they may have had among themselves while
considering their verdict.'" Koedatich, supra, 112 N.J. at 288
(quoting Athorn, supra, 46 N.J. at 251).
Thus, the holding in Loftin on which defendant relies, that
"a juror who has formed an unalterable opinion of the
15 A-3491-15T2
defendant's guilt or innocence must be excused from service on
the panel," 191 N.J. at 187, does not speak to whether a post-
verdict allegation that a juror formed such an opinion would
warrant a new trial. Indeed, the Court has held it insufficient
to overturn a verdict already rendered. LaFera, supra, 42 N.J.
at 110 (holding a juror having "reached what proved to be his
final view sometime during the trial and communicated that view
to two of his fellow jurors, does not warrant a new trial").
The Court in LaFera reasoned that a person
inevitably reacts to what he hears as he
hears it. He cannot avoid current
impressions however much he wills to resist
them. And although he may think those
impressions are final, he cannot really know
that they will endure. We may assume that
many jurors begin the deliberations with
strong convictions as to how the case should
go, and then yield them to persuasion in the
jury room. We instruct jurors to refrain
from premature discussion in the hope that
they will enter upon their deliberations
with a maximum capacity to consider the
views of others, but we cannot say a juror
is guilty of misconduct because he reaches a
conclusion before ideally he should.
[Id. at 108-09.]
Thus, while acknowledging that a mistrial might be
appropriate if a court learns in the course of trial "that a
juror has expressed his view with apparent finality to fellow
jurors or persists in premature discussions with them despite
the court's instruction," the LaFera Court held such revelations
16 A-3491-15T2
after the verdict would not state sufficient grounds to
invalidate it or to call back jurors to interrogate them about
the comments. Id. at 109-10.
New Jersey courts have long recognized the distinction
between allegations of juror misconduct arising at trial and
those first alleged after entry of a verdict, and the dangers to
our system of justice posed by interrogating jurors about their
secret deliberations for the purpose of invalidating a verdict.
See State v. Harris, 181 N.J. 391, 503 (2004), cert. denied, 545
U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005)
(acknowledging the Court's repeated reaffirmance of the "high
bar" defendants must hurdle to show good cause under Rule 1:16-
1). Because the alternate here came forward with her complaint
about her fellow jurors only after entry of the verdict, Loftin
is inapposite. LaFera controls here.
Further, the Court's statement in LaFera that jurors who
begin deliberations with strong convictions may yet yield to the
persuasion of their fellow jurors, appears particularly apt
here. 42 N.J. at 108-09. Although the alternate claims she
heard juror No. 2 say "that he was going to make sure this
defendant (Griffin) would not 'get off' like the codefendant,"
and indicated that an "organized group of jurors decided to vote
guilty even before summations were heard," the State notes that
17 A-3491-15T2
the jury deliberated "for about a day and a half" before
announcing its unanimous verdict. The length of time the jurors
deliberated and the absence of a complaint by any of them as to
how those deliberations were conducted is inconsistent with the
alternate's charge that defendant's fate was pre-ordained based
on a comment made before deliberations had begun.
The complaining alternate did not participate in the jury's
deliberations and cannot say what transpired in the jury room
during those deliberations. Defendant's speculations about why
one of the deliberating jurors may have asked initially to serve
as an alternate and whether another alternate was truthful in
saying that car trouble prevented her from appearing, do not
provide good cause for the court to interrogate any of the
jurors after entry of the verdict. See State v. DiFrisco, 174
N.J. 195, 241 (2002) (affirming trial court's refusal to
interview jurors as affidavit submitted by defense counsel based
on conversation with alternate juror did not suggest jurors
actually considered inappropriate evidence during
deliberations), cert. denied, 537 U.S. 1220, 123 S. Ct. 1323,
154 L. Ed. 2d 1076 (2003).
We likewise do not accept defendant's arguments that "an
agreement" among some jurors made prior to deliberations to vote
guilty, provides good cause for the order entered here. First,
18 A-3491-15T2
the certification submitted by defense counsel does not mention
an agreement among jurors, and counsel sought a hearing only to
determine if certain jurors "pressed for a guilty verdict" prior
to deliberations. Second, although there is no doubt that a
prior agreement among jurors to be bound to a particular result
"when such agreement has the capacity to foreclose all
subsequent discussion, deliberation, or dissent among jurors" is
inappropriate, Shankman v. State, 184 N.J. 187, 200 (2005)
(discussing impermissible quotient verdict), defendant has
presented no proof that such an agreement existed among any of
the deliberating jurors. His speculations provide no basis for
post-trial voir dire pursuant to Rule 1:16-1. See State v.
Marshall, 148 N.J. 89, 280, cert. denied, 522 U.S. 850, 118 S.
Ct. 140, 139 L. Ed. 2d 88 (1997) (denying defendant's request to
contact jurors after discharge as "allegations of extraneous
influence lack any factual basis and rely on purest
speculation").
We further do not accept that the court having limited the
scope of its order to non-deliberating jurors, makes the policy
arguments against intrusion into a jury's secret deliberations
irrelevant. The prohibitions of Rule 1:16-1 are not limited to
deliberating jurors. See State v. Freeman, 223 N.J. Super. 92,
118-20 (App. Div. 1988) (affirming trial court's refusal to
19 A-3491-15T2
interview alternate juror pursuant to Rule 1:16-1), certif.
denied, 114 N.J. 525 (1989). The "good cause" requirements of
the rule apply equally to deliberating and non-deliberating
jurors because the risks to the jury system presented by post-
verdict investigation into juror misconduct are the same,
regardless of whether the jurors actually participated in
deliberations. Calling back these jurors after discharge is no
less an extraordinary procedure because they did not participate
in deliberations. See DiFrisco, supra, 174 N.J. at 241-42.
Finally, in order to provide guidance in such situations in
the future, we comment briefly on the procedure employed here.
In our view, defense counsel's telephone conversation with the
alternate juror, albeit unsolicited, ran afoul of Rule 1:16-1.
As we explained in State v. Young, 181 N.J. Super. 463, 471
(App. Div. 1981), certif. denied, 91 N.J. 222 (1982), a lawyer
"should promptly advise any juror who approaches him that [the
lawyer] may not discuss the matter and that [the lawyer] must
promptly report any such communication to the trial judge."
Further, we wrote that the lawyer "should encourage the juror to
go directly to the judge to make any complaint or advise the
judge what may have transpired if there appears to be any
questions in the juror's mind." Ibid.
20 A-3491-15T2
We believe that should have occurred here. Although we
have no reason to believe that defense counsel acted other than
guilessly, instead of receiving the juror's allegations, defense
counsel should have advised the alternate he was prohibited from
speaking with her. He should have urged her to contact the
court and told her that he would do the same. Upon receipt of
that information, either from the juror, defense counsel, or
both, the trial court should have promptly arranged for a
conference with counsel to receive the alternate's complaint on
the record. See Davis v. Husain, supra, 220 N.J. at 288. In
that way, the trial judge could have assessed the alternate
juror's credibility, instead of receiving the complaint through
the filter of a lawyer's hearsay certification, and determined
"whether a Rule 1:16-1 formal inquiry [was] warranted" under
existing case law.7 Ibid.
Instead, the trial judge retired without taking the
alternate's complaint, and a year has passed since entry of the
verdict with no conviction entered and defendant remaining
unsentenced. Complaints of juror misconduct must be addressed
fully and expeditiously to avoid such delays in the future.
7
Our comments should not be read to imply any criticism of
defense counsel. The record regarding counsel's conversation
with the juror is not extensive, and we accept counsel may well
have taken some of these steps, notwithstanding they were not
included in his certification to the court.
21 A-3491-15T2
Because we have accepted counsel's representations of the
alternate's allegations as true and found them insufficient, as
a matter of law, to warrant the extraordinary procedure of
calling back the jury for questioning, we reverse the order
under review and remand for sentencing and the entry of a
judgment of conviction. We do not retain jurisdiction.
Reversed and remanded.
22 A-3491-15T2