STATE OF NEW JERSEY VS. J.T. (09-06-1113, BERGEN COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2018 )

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4041-11T4
STATE OF NEW JERSEY,
APPROVED FOR PUBLICATION
Plaintiff-Respondent, June 13, 2018
v. APPELLATE DIVISION
J.T.,1
Defendant-Appellant.
__________________________
Argued January 19, 2017 – Decided June 13, 2018
Before Judges Fuentes, Simonelli and Gooden
Brown.
On appeal from Superior Court of New Jersey,
Law Division, Bergen County, Indictment No.
09-06-1113.
Brian J. Neary argued the cause for appellant
(Law Offices of Brian J. Neary, attorneys;
Brian J. Neary, of counsel and on the briefs;
Jane M. Personette, on the briefs).
Ian C. Kennedy, Assistant Prosecutor, argued
the cause for respondent (Gurbir S. Grewal,
Bergen County Prosecutor, attorney; Deepa S.Y.
Jacobs, Assistant Prosecutor, of counsel and
on the brief).
The opinion of the court was delivered by
FUENTES, P.J.A.D.
1
We use initials or pseudonyms to refer to defendant and the
victims of these crimes pursuant to Rule 1:38-3(c)(9) and N.J.S.A.
2A:82-46(b).
Defendant J.T. was indicted by a Bergen County Grand Jury and
charged with the murder of her husband, M.T., N.J.S.A. 2C:11-
3(a)(1)-(2) (count one); first degree attempted murder of her
minor daughter, K.T. (Karen), N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-
3(a)(1)-(2) (count two); second degree endangering the welfare of
Karen, N.J.S.A. 2C:24-4 (count three); second degree endangering
the welfare of her minor son, A.T. (Angel), N.J.S.A. 2C:24-4 (count
four); and third degree terroristic threats against Karen and
Angel, N.J.S.A. 2C:12-3(b) (count five). These charges arise from
events that occurred on March 29, 2009. The indictment also
charged defendant with two crimes that allegedly occurred on an
unspecified date between November 12, 2008 and March 1, 2009:
first degree attempted murder of Karen, N.J.S.A. 2C:5-1 and
N.J.S.A. 2C:11-3 (count six); and second degree endangering the
welfare of Karen, N.J.S.A. 2C:24-4 (count seven).
On December 28, 2011, the jury acquitted defendant of murder,
but found her guilty of the lesser included offense of aggravated
manslaughter, N.J.S.A. 2C:11-4(a). The jury also found defendant
guilty of all of the remaining counts in the indictment. On
February 29, 2012, the trial judge sentenced defendant to a term
of thirty years, with an eighty-five percent period of parole
ineligibility and five years of parole supervision, as mandated
by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2; a term of
2 A-4041-11T4
ten years on count two, attempted murder of Karen, subject to
NERA; and five-year terms on counts three and four, endangering
the welfare of Karen and Angel. The judge ordered all of the
sentences imposed on these offenses to run consecutive, resulting
in an aggregate term of fifty years, subject to the parole
restrictions of NERA.
On the remaining counts, the judge imposed concurrent terms
of imprisonment as follows: a five-year term on the conviction of
third degree terroristic threats; a ten-year term on the conviction
of first degree attempted murder of Karen prior to March 29, 2009;
and a five-year term on the conviction for second degree
endangering the welfare of Karen prior to March 29, 2009.
The central issue in this appeal does not concern whether
defendant actually engaged in the conduct that led to this criminal
prosecution. Defendant admitted she suffocated her husband and
then attempted to suffocate her children. The question before the
jury was whether defendant was legally insane at the time she
engaged in this conduct. The jury found defendant was legally
sane and therefore criminally culpable.
In this appeal, defendant raises the following arguments:
Point I
MULTIPLE IRREGULARITIES INVOLVING THE JURY REQUIRE
THAT DEFENDANT'S CONVICTION BE REVERSED AND THE
MATTER REMANDED FOR A NEW TRIAL.
3 A-4041-11T4
a. The method of jury selection was neither
random nor conducted in a manner consistent
with [N.J.S.A.] 2B:23-2.
b. [Defendant's] due process rights were violated
when the [c]ourt addressed the jury pool in
her absence.
c. The misconduct of two jurors, and the
[c]ourt's thoroughly inadequate ex parte voir
dire of them, prejudiced [d]efendant,
resulting in a denial of due process and
require reversal.
d. The [c]ourt below erred in failing to declare
a [m]istrial.
Point II
VARIOUS ERRORS REGARDING THE TESTIMONY OF DR.
STEVEN SIMRING REQUIRE REVERSAL.
a. Dr. Simring impermissibly opined on the
ultimate issue of guilt, thus requiring that
[d]efendant's conviction be reversed. ([N]ot
raised below).
b. The violation of the sequestration order by
the State's expert requires reversal of
[d]efendant's conviction.
Point III
VARIOUS ERRORS REGARDING THE TESTIMONY OF STATE
WITNESS, [DEFENDANT], PREJUDICED DEFENDANT, THUS
REQUIRING HER CONVICTION TO BE VACATED AND THE
MATTER REMANDED FOR A NEW TRIAL.
a. Summary of [defendant's] trial testimony.
b. Multiple errors regarding the video and
transcript of [defendant's] statement of March
29, 2009 require [d]efendant's conviction to
4 A-4041-11T4
be vacated and the matter remanded for a new
trial.
c. The procedure employed by the [c]ourt below
violated [defendant's] Sixth Amendment right
to confrontation.
d. Prosecutorial misconduct requires that
[defendant's] conviction be vacated and a new
trial [o]rdered.
Point IV
CUMULATIVE TRIAL ERRORS IN THE CONTEXT OF THE
PROCEEDINGS BELOW DEPRIVED DEFENDANT OF A FAIR
TRIAL AND WARRANT REVERSAL.
Point V
THE SENTENCE IMPOSED BY THE COURT BELOW IS
EXCESSIVE.
a. The [c]ourt below failed to credit [defendant]
with all applicable mitigating factors.
b. Concurrent sentences should have been imposed.
c. The [c]ourt below erred in failing to sentence
[d]efendant as if convicted of offenses one
degree lower.
In light of the record developed at trial, we reverse
defendant's conviction and remand this matter for a new trial.
The record shows the prosecutor asked the expert witness to define
"legal insanity." This question required the State's expert to
improperly opine on defendant's state of mind, stating that
defendant had "the specific intent" to kill her husband. This
opinion testimony usurped the jury's exclusive role to decide this
5 A-4041-11T4
critical factual issue, rendering any verdict tainted by it
unsustainable. State v. Cain, 224 N.J. 410, 424 (2016). Although
this issue is before us as a matter of plain error under Rule
2:10-2, we are satisfied that this testimonial evidence is "of
such a nature as to have been clearly capable of producing an
unjust result." R. 2:10-2.
Although not outcome determinative, this opinion also
includes a detailed description and analysis of the trial judge's
ex parte interactions with a pool of prospective jurors. We have
taken the time to do this because there are no reported decisions
by any court in this State addressing this particular issue.
I
The Incident
Defendant worked as a computer programmer at the New Jersey
Institute of Technology (NJIT); her husband M.T. was primarily
responsible for the rearing of their children as a stay-at-home
father. The couple's two children, Karen and Angel, were fifteen
and ten years old respectively at the time of their father's death.
In early November 2008, M.T. suffered a stroke that caused
severe physical and cognitive impairments and left him unable to
care for himself. Witnesses familiar with the family uniformly
testified that before M.T.'s stroke, the couple appeared to have
a good relationship, and the family was close and enjoyed spending
6 A-4041-11T4
time together. The children's testimony corroborated these
impressions of familial harmony. Karen described her father as
humble, "very kind and modest," and defendant as caring, strong
and "very hardworking." Both children described defendant as a
"good mom" who rarely yelled and never resorted to corporal
punishment.
On November 21, 2008, M.T. was discharged from the hospital
and transferred to the Kessler Rehabilitation Center (Kessler),
where he remained until January 6, 2009, when he was thereafter
transferred to Maple Glen Care Center (Maple Glen). Soon after,
defendant's insurance company issued a "cut letter," advising that
it would not cover M.T.'s stay at Maple Glen beyond February 11,
2009.2
By all accounts, defendant soon became overwhelmed by the
responsibilities of being her husband's sole caretaker, the
family's sole wage earner, and the de facto single-parent of two
children. She was especially distressed after she learned that
M.T. was not eligible to receive social security benefits. This
required her to "spend down" the family's assets by $81,000 before
2
At trial, the admissions director at Maple Glen explained that
an insurance company issues a "cut letter" when it determines that
a patient has maximized the benefits of his or her stay at a
rehabilitation center and is unlikely to progress any further.
7 A-4041-11T4
M.T. could receive Medicaid.3 Witnesses who knew defendant
testified that she worried incessantly about her husband's medical
expenses and feared that they would consume all of the family's
resources, leaving nothing left to cover the cost of the children's
college education.
Defendant's work supervisor, David Ullman, referred her to
the Employee Assistance Program (EAP) for counseling because he
believed she was "at the end of [her] rope." Ullman testified
that defendant would talk to him about dying and seemed like she
was "giving up." Karen and Angel testified that their mother
changed from being a "very strong" person to being "really
depressed, and not really herself." Karen testified that she saw
her mother's mental state deteriorate over time; she acted "mad"
and "crazy."
Karen provided the following description of her observations
of her mother's melancholic disconnection:
There was a time when -- it's like later in
the time period before the incident, she --
she was talking -- not saying the word, but
she was talking about being suicidal. There
was a time when she just . . . wanted to die.
She wished that she was dead. She wished --
she just wished that everything would be over,
because this felt like such a huge boulder on
her shoulders. It was a huge burden.
3
This "spend down" or partial depletion of the family's assets in
order to qualify for Medicaid assistance was based on a valuation
of the family's assets as being approximately $190,000.
8 A-4041-11T4
. . . .
Q. [D]o you remember exactly what she said?
A. There was one [time] when she said that she
had threatened - - she almost was in the
parking lot, and she wanted to jump off,
because it was like a certain floor, and it
was high up from the ground.
Q. And she told [you] that?
A. Yes.
Angel corroborated his older sister's description of
defendant's lugubrious mood and frustration over his father's
condition, and how her emotional state deteriorated over time.
However, in response to defense counsel's questions on cross-
examination, Angel made clear defendant never engaged in physical
violence:
Q. [W]ould you say that your mom was getting
more and more stressed?
A. Yes.
. . . .
Q. Now, you said to the Prosecutor that she
talked about that she was mad. She . . .
never hit you; is that right?
A. No.
Q. Okay. Never hit [Karen]; right?
A. Never.
Q. Never hit your dad either; right?
A. No.
9 A-4041-11T4
Angel also testified that he and his sister's mutual concerns over
the situation prompted Karen to write a letter to defendant on
February 21, 2009, approximately one month before her father's
death.4 The letter provides, in relevant part, as follows:
I know [these] past couple of months have been
tough on us . . . . BUT, PLEASE! LISTEN TO ME!
You seriously have gone insane! Your emotions
are slowly destroying your decision-making
skills! All I see from you every single
miserable day [is] despair, depression,
insanity [and] psychotic craziness . . . .
[Angel] and I try to make you smile a little
[but] you just fall into a deeper
depression[.]
. . . .
We need you back! We think you are beautiful
[and] loving deep down inside hiding from
[the] madness you show now.
Defendant's behavior also alarmed employees at Maple Glen,
the rehabilitation center that treated M.T. after he was
transferred from Kessler. They testified that defendant obsessed
about M.T.'s care and the cost of his treatment. Kay Giacelone,
an admissions director at Maple Glen whose responsibilities
included patient intake and working with Medicaid, testified that
defendant repeatedly asked variations of the same two questions
on a near-daily basis, namely: (1) whether M.T. could qualify for
4
Although Karen confirmed the letter was in her handwriting, she
testified that she did not recall actually writing it.
10 A-4041-11T4
Medicaid; and (2) whether he would ever regain the ability to walk
independently.
Sheila Hudley, an assistant director at Maple Glen, testified
about a conversation she had with defendant on February 26, 2009:
She had come in to see . . . how he was doing,
have I heard anything . . . . I guess she
wanted to know how his rehab was doing. And
I basically tried to let her know she had to
talk to [the treatment staff]. But, when I
saw him, he was walking with Jackie [(the
Occupational Therapist)]; he was okay . . .
[Defendant asked if] I had seen him that day,
and I said, "Yeah, I'd seen him," . . .
probably earlier that day . . . in the dining[-
]room area . . . with other patients . . . .
. . . .
[S]he asked me if he cannot, . . . she stated
he couldn't live like . . . that. And I said,
"What are you talking about?" As best as I
remember, she said, "He cannot live like that.
Do we do an injection?" So I asked her, "What
are you talking about?" She asked me, "Do we
let people die . . ."
[(Emphasis added).]
When the witness paused, the trial judge decided to call a
recess of the morning session. When the trial resumed in the
afternoon, Hudley testified that immediately after this encounter
with defendant, she sent an email to her Supervisor, to the
center's Administrator, and to the Director of Nursing,
documenting what defendant had told her concerning her husband's
11 A-4041-11T4
wishes to end his life if there was no realistic prospect of
improvement of his physical condition.
Hudley also mentioned in her email that defendant was
"worr[ied] about money for her kids' education and can't keep
spending down . . . ." Although defendant had signed a "DNR" (Do
Not Resuscitate) directive for her husband, she insisted "this was
not good enough and she wanted to get the doctor . . . to give him
an injection so he can die in peace." Hudley characterized
defendant's state of mind as "off her rocker" and "nuts." In the
email, she cautioned her colleagues: "we better all watch this
lady . . . ." In her response to Hudley's email, Giacelone stated
that she would ask the "psych doctor to see and evaluate [defendant
stat.]" The staff at Maple Glen concluded that defendant did not
seem to understand or accept the nature of her husband's brain
injury.
A few weeks after Hudley's encounter with defendant, M.T. had
a home visit to determine if he could return home permanently.
The visit was brief and "stressful" for the entire family. The
level of intensive care M.T. required, particularly around
mealtimes, revealed the futility of any attempt to have him home
without a permanent healthcare aide. On March 28, 2009, M.T. was
sent home a second time; he died the next morning.
12 A-4041-11T4
In addition to M.T.'s difficulties at mealtimes, Angel and
Karen highlighted two incidents that occurred before M.T.'s death.
Early in the evening, M.T. accidentally ripped the bathroom sink
off the wall when he leaned on it for support. According to
Angel, defendant became "really, really mad." At some point after
ten o'clock that evening, Angel heard defendant yelling at M.T.
for urinating on the bed. Angel testified that he fell asleep
sometime thereafter. He was later awakened by the loud sound of
his father "gasping for air." When asked to describe the volume
of the sound, Angel responded: "Pretty loud." The child testified
that the sound lasted for approximately "five seconds." Although
he shared a bedroom with his sister, Angel stated Karen remained
asleep at this time. The following exchange captured what occurred
next from Angel's perspective:
Q. And was [Karen] in the bed at this point?
A. Yes.
Q. And did you try to wake [Karen] up at all?
A. No.
Q. Did you say anything?
A. No.
Q. But you were scared?
A. Yes.
13 A-4041-11T4
Q. Okay. What's the next thing you remember
after that?
A. I saw my mom come into the room, maybe like
a minute after this, after the gasping, and
she came in with a plastic bag. And then, she
was about to put the bag on [Karen's] head,
and [Karen] knocked it out of the way.
Q. Okay.
A. And that's when they started arguing.
. . . .
Q. Did [defendant] say anything when she came
into the room?5
A. No.
Q. How did that make you feel?
A. More scared.
Q. What did you think was going to happen?
A. That she was going to suffocate me and
[Karen].
. . . .
Q. And if you could, show us how close you saw
that bag come to your sister's head?
A. Maybe a foot.
. . . .
Q. And what did [Karen] do?
5
Although the bedroom light was off, Angel testified he could see
what was taking place because the room's window-blinds were not
"completely closed," and there was light that came from the
bathroom's window.
14 A-4041-11T4
A. She like grabbed the bag and pushed it away.
Q. And what happened after that?
A. Then my sister and mom got into an argument.
Q. What did you hear them saying?
A. My sister was yelling, oh, why are you doing
this, mom? Why did you do this? What just
happened? And then my mom was like yelling
back, oh, we can't do anything else, like I
killed dad, and stuff like that.
Karen's testimony corroborated her brother's account of
defendant's conduct. Karen testified that she fell asleep after
her father accidently ripped the bathroom sink off the wall, "then
the water started squirting everywhere." She testified:
A. I had a nightmare . . . about my dad
screaming for help. My mom had a knife in her
hand. And I didn't see like a stab, but I see
a knife going down, and I see blood squirting.
And I woke up without opening my eyes
assuming that it was just a nightmare. And I
opened my eyes and I see the bag over -- almost
over me.
Q. What type of bag?
A. A plastic bag.
[At the prosecutor's request, Karen
demonstrated for the jury how close the bag
was from her head at the time she woke up.]
. . . .
Q. Who had the plastic bag by your head like
this?
15 A-4041-11T4
A. My mom.
At this point, Karen testified she did not remember what her
mother did next. In the presence of the jury, the prosecutor
asked Karen if she recalled viewing a video recording of a
statement she gave to a law enforcement investigator on March 29,
2009, more than two years before the start of the trial. When
Karen responded "yes," the prosecutor asked her if viewing the
video statement refreshed her memory "as to what [she] said about
what happened after [her] mom had the plastic bag by [her] head?"
Karen answered:
A. I don't remember what happened from bedroom
to kitchen. But I'm in the kitchen and I'm
struggling with my mother. And I don't know
where my brother is. He--he just ran outside.
But at that time I didn't know what to do,
because I really couldn't think.
Q. What was your mom--what do you remember
you and your mom doing in the kitchen?
A. We were struggling, and I kept telling
her, mom, mom, we can still live. You
shouldn't do this to us.
Q. Why did you say that?
A. I said it because I thought she was going
to kill us.
Q. Why did you think she was going to kill
you?
A. I felt like I didn't see a mother anymore.
I saw a monster through her eyes. And I was
just trying to talk her out of it.
16 A-4041-11T4
Q. Talk her out of what?
A. Talk her out of this depression and [her]
suicidal thoughts . . . .
Q. And were you also afraid for yourself at
that point?
A. Yes.
Karen testified that when she next saw her father that night, "he
was white." She immediately thought that her mother had killed
her father.
While this horrific scene between defendant and her daughter
unfolded, Angel fled the home and attempted to get help from his
maternal uncle and grandparents. After several phone calls, Angel
finally reached defendant's younger brother, W.C. (Wayne). Wayne
testified that when he checked his voice mail at approximately
8:30 a.m., he noticed he had several messages from Angel. The
first message was left at around 8:08 a.m., and stated: "Uncle
[Wayne] . . . this is an emergency; I need you to come over right
away." In the second voice message Angel "sounded more urgent;"
the child stated: "I need you; I really need you to come over
right away."
When Wayne called back, Angel told his maternal uncle that
defendant was trying to kill him, herself, and Karen. Wayne
testified that he told Angel to give the phone to defendant. Wayne
17 A-4041-11T4
said his sister's voice sounded "frantic." She told him that she
had killed M.T., that "she want[ed] everything to end" and take
the children with her. He told her not to do "anything . . .
stupid, anything rash . . . [b]ecause at that time, I thought
. . . she was thinking irrational[ly] . . . ." Although Wayne
thought defendant was acting hysterically, he did not believe that
she had actually killed her husband.
At approximately 8:50 a.m., Angel called 911 and told the
dispatcher that his mother was trying to kill him. Elmwood Park
Police Officers Marc D'Amore and Nicholas Petronzi responded to
the call and arrived at the residence at approximately 9:00 a.m.
D'Amore testified that when they arrived, the front door to the
home was open. When he stepped into the residence, he saw
defendant "sobbing quietly with her head in her hands." D'Amore
found M.T. on the bed; the deceased was already showing signs of
rigor mortis. Both D'Amore and Petronzi testified that defendant
was visibly upset and spoke rapidly in a rambling manner,
interjecting statements about having "too many hospital bills and
had no money." D'Amore testified that defendant told him: "[M.T.]
urinates and I have to clean it up. He broke everything in the
house last night and Kessler kicked him out because we have no
money." She also stated that she killed M.T.
18 A-4041-11T4
The officers arrested defendant in her residence. Petronzi
testified he escorted defendant handcuffed to his patrol car,
where he read to her the standard Miranda6 rights from a card he
carried in his pocket. However, when he asked her if she
understood those rights, defendant was unresponsive and merely
stared straight ahead. The drive to the police station took
approximately six to eight minutes. During this time, defendant
continued "rambling" to the officers "that she had too many bills,
too many hospital bills, that she [had] no money, and that she had
no money for her kids['] college." She also told the officers:
"Put a bullet in my head. I want to die."
Defendant continued to behave in this manner after she arrived
at the police station. Elmwood Park Detective Robert Centowski
testified that when he approached defendant to gather background
information, she was rocking back and forth on the metal bench to
which she was handcuffed. Although she was not crying, he
described her demeanor as "visibly upset." Centowski was unable
to complete the standard background interview because defendant
repeatedly answered his questions with nonresponsive statements
of an incriminating nature. For example, when Centowski asked
defendant for her name, she "smirked" and said, "[w]ell, not
6
Miranda v. Arizona, 384 U.S. 436 (1966).
19 A-4041-11T4
really--not [T] anymore. That was my husband's last name." When
he asked her for her date of birth, she responded: "What do you
want me to do? He can't even go to the bathroom. He makes a
mess. He ruined our lives. All of our savings go to bills. My
children have nothing now."
Bergen County Prosecutor's Office (BCPO) Detective Gregory
Kohles was assigned to question defendant about what had occurred
at her home. He conducted the interrogation at the Elmwood Park
Police Station. When asked by the prosecutor to describe
defendant's demeanor when he first saw her, Kohles responded:
"Obviously, a . . . terrible thing had taken place. She was -- I
would say distraught is the best way to describe her. She was
distraught and obviously very upset over everything that was going
on." From 11:37 a.m. to 1:03 p.m., Kohles asked defendant whether
she understood her Miranda rights five to six times. During this
approximately ninety-minute time period, Kohles said defendant was
unfocused and preoccupied with explaining what happened.
According to Kohles, defendant repeatedly told him that she
wanted to die. As a result, Kohles determined that "no matter
what," once the interrogation was concluded, defendant should be
referred to Bergen Regional Medical Center (Bergen Regional) for
a psychiatric evaluation. In fact, defendant never signed the
standard Miranda waiver form. Kohles testified that "due to her
20 A-4041-11T4
emotional state . . . it took until 1:03 [p.m.] when she finally
verbally understood and said that okay, I'm willing to answer some
of your questions and explain what's going on."7 (Emphasis added).
Defendant told Kohles that she became frustrated with M.T.
when he urinated on the bed and laid back down on the soiled sheets
after she had just changed his clothes. When she asked him to get
up, he purportedly refused to move because he was tired and wanted
to sleep. In the course of the interrogation, defendant revealed
the thoughts that ran through her mind as she contemplated the
prospect of spending an indeterminate amount of time caring for
M.T.'s every need. She found particularly distressing envisioning
the details of having to perform the tasks related to M.T.'s
personal grooming needs. She derived no solace from knowing that
a home-health aide would likely be available to assist M.T. with
performing many, if not all, of these aspects of his personal
care. Her non sequitur replies to her interrogators' questions
revealed defendant saw herself trapped in a loop of despair caused
by two seemingly unsolvable problems: (1) the drain on the family's
financial resources caused by M.T.'s never ending personal needs;
7
The trial court found defendant's statements were admissible
because she voluntarily, knowingly, and intelligently waived her
rights under Miranda. This ruling is not challenged on appeal.
21 A-4041-11T4
and (2) the disgust she felt cleaning up after M.T.'s
uncontrollable biological functions.
As this psychological/emotional cyclone ravaged the stability
of this family, defendant responded by telling M.T. to "go ahead,
you can sleep forever." She then "let [M.T.] go" to a "better
place." She told the detectives that she had to "release him" and
that her actions had nothing to do with the kids. At one point,
the interrogating officers asked defendant how she suffocated her
husband, asking her if she "choke[d] him?" She responded:
A. I actually tr[ied] to put the plastic on
him too.
Q. Plastic?
A. I put the plastic on my hand . . . .
Q. Plastic? What? Like saran wrap or like a
plastic wrap?
A. The shopping, the shopping bag.
. . . .
Q. [S]o that's over his face and then your
hand over it?
A. Only his nose.
Q. His nose and mouth? Okay. Okay. Does he
realize what's going on or anything like that
or no?
A. In a way he, he was, he probably wondering
what, what happened.
Q. Okay.
22 A-4041-11T4
A. And I'm telling him, you won't remember.
Q. Right.
A. Ten years from now you won't remember
anything.
Q. Okay.
A. He lives in a better place.
Defendant also told the interrogating officers: "After 7:00
[a.m.] I was trying to kill myself . . . I had the plastic ready."
After she allegedly placed the bag over her, defendant said she
"started feeling something" and decided to see her children one
last time. She explained:
[Karen] asked me what I'm doing. I said, oh,
I want to, I want to bring you with me. She
saw the plastic [bag], she immediately
grab[bed] it . . . .
. . . .
I told her . . . I want to bring you with
. . . me and your brother. She immediately
grabbed the thing off my hand and she started
screaming, mom, you cannot do that, we need
you and I say, I'm really sorry, but I already
let your father die. I let your father go.
I don't [want to] leave you and your brother
on earth alone. I want to bring you with me.
Shortly after this exchange, defendant's answers became a
series of nonresponsive statements that wandered into unrelated
topics, including: (a) problems she was having with the house's
heating system; (b) her father's disapproval of M.T.; and (c) her
23 A-4041-11T4
children and her general frustration with medical industry
practices. She also mentioned a conversation she allegedly had
with M.T. before his stroke concerning a news story about a
comatose woman. Defendant claimed that she and her husband agreed
then that each would let the other spouse die under those
circumstances.
At the conclusion of the interrogation, the police officers
transported defendant to Bergen Regional for a suicide assessment.
Dr. Steven Simring, the State's expert witness in the field of
forensic psychiatry, testified that the attending doctor at Bergen
Regional gave defendant a global assessment of functioning score
(GAF)8 of ten and made "an admitting [tentative] diagnosis" of
defendant of "Axis I . . . major depressive disorder single episode
severe with psychotic features." Dr. Simring explained that after
a week of observations, defendant's diagnosis was revised to "major
depressive disorder occurrence severe without psychotic features."
Defendant was discharged from Bergen Regional and considered "safe
to return to jail."
8
The GAF score is on an objective scale of zero to one hundred,
with ten representing a homicidal or suicidal individual and one
hundred representing someone who is functioning normally.
24 A-4041-11T4
II
The Trial
A
On Monday morning, November 28, 2011, the vicinage's Jury
Manager's Office sent a venire of prospective jurors to the judge
assigned to try this case. For reasons not disclosed in this
record, the judge allowed the jurors to enter the courtroom and
addressed them concerning the nature of the case, without the
attorneys or defendant present. (Emphasis added).
THE COURT: All right. Everybody has a seat
now. Good morning, everyone. [Y]ou've been
assigned to me in order to select a jury for
the case [of] [State v. J.T.] on Indictment
No. 1113-09.
We'll be starting this trial tomorrow and
we're going to work every day except for
Mondays and Fridays. Monday is a calendar
call day here at the Courthouse for the
criminal cases. This is a criminal case.
And on Fridays we do sentences. So, that's
why the trials are reserved for Tuesday,
Wednesday and Thursday.
So, with regards to the duration of the
trial, it would be, obviously, this week
Monday -- I'm sorry -- Tuesday, all day
tomorrow, then Wednesday it would be half-day,
and Thursday it would be half-day. So, at
12:30 you would be dismissed, and then you can
go back to work, or do whatever you'd like to
do.
25 A-4041-11T4
At this point, we pause to emphasize that the record does not
reflect that the judge discussed any trial scheduling details with
the attorneys. In fact, the judge conducted a lengthy explanation
with this group of prospective jurors that covered not only that
current week, but what the judge anticipated would occur the
following week. The judge continued:
[W]e don't think that the case is going
to go that long, but just in case, we always
have a reserve of additional days, but the
case is a rather short case. It's a criminal
case that should only take three to four days9
. . . .
Now, I know that they're selecting jurors
in the Civil Division. They're working on a
medical malpractice case, and there's another
Judge who is also working in the Civil
Division who is selecting [jurors] today
. . . .
Those cases are all scheduled to last
anywhere between three to four to five weeks.
So as you [can] tell, this is a very short
case. So, it's better that you stay here
. . . [because] you could satisfy your jury
duty [with] a short case . . . .
[(Emphasis added).]
The judge also acknowledged the upcoming holiday season, but
assured the jury pool:
9
Including the jury selection process, the trial actually lasted
thirty calendar days.
26 A-4041-11T4
[I]'m sure to get you out of here before the
Christmas holidays. I'm telling you, it will
not go that far.
So, if you have a holiday, if you have a
vacation plan for Christmas, that's fine.
It's not going to interfere in any way with
your vacation schedule. This is just a short
trial and . . . we will surely be done before
the 19th of December.
The record does not contain any information that explains how
the judge arrived at the estimates of the expected length of the
trial that she provided to the prospective jurors. The only basis
we have in this record from which to infer how this ex parte
exchange occurred comes from the judge's following comments:
[The Jury Manager's Office] had originally
scheduled you to come here at 1:30 [p.m.], but
I didn't want to have . . . your whole day --
wasted, you know? I said if I could get this
done in the morning, it's better. This way
they have the rest of the day to do whatever
they like.
Finally, we are compelled to note that the judge concluded
her address to the jurors without including cautionary
instructions: (1) not to discuss the case among themselves or with
anyone else; and (2) not to conduct any kind of research on the
case, especially on the internet. Because the judge identified
defendant by name and stated the case's indictment number, the
failure to provide this admonition to the jurors proved to be
particularly problematic. Trial judges must be mindful that in
27 A-4041-11T4
this Internet age, the availability of pertinent information about
any criminal case, especially one involving these tragic details,
is but a click away.
The State does not address this issue in its eighty-four-page
appellate brief. Defendant's appellate counsel, who was the
attorney who represented her at trial, asserts that the judge did
not consult with him before she addressed the jury pool on November
28, 2011. Defense counsel also points out that "the trial
continued well past the time incorrectly estimated by the [c]ourt
. . . ."
Defendant, her counsel, and the prosecutor were present when
the court reconvened on Tuesday morning, November 29, 2011. The
transcript of these proceedings does not indicate the time the
court session began. Based on the nature of the issues discussed
in open court, we infer the prospective jurors were not in the
courtroom at the time the trial judge and counsel discussed a
plethora of issues, some involving mundane matters, and others
concerning significant legal questions, including the
admissibility of defendant's inculpatory statement made during her
custodial interrogation. As to the duration of the trial, the
judge asked the prosecutor: "How long do you anticipate the entire
trial to be . . . including the defense case[?]" The prosecutor
28 A-4041-11T4
responded: "I believe testimony would conclude . . . some day [in]
the week of December 19th, [2011]."
The attorneys also spent a significant amount of time
discussing the substance and phraseology of the voir dire questions
and the methods the judge would use to present these questions to
the prospective jurors. In the course of these discussions,
defense counsel confirmed that the court clerk planned on
"prequalifying" the jurors by "individually voir diring them here,
as opposed to sitting fourteen in [the jury box]." This prompted
the following exchange:
DEFENSE COUNSEL: [H]ave these jurors been
spoken to about this case before? About this
particular case?
THE COURT: No. They know nothing about the
case other than they came here yesterday, and
they were told to return today. And they're
here today, right?
COURT CLERK: Yes.
THE COURT: You took attendance?
COURT CLERK: Uh-huh.
THE COURT: So, they know nothing about the
facts of the case. They don't know anything
other than you're here. You've been assigned
to the Criminal Division for selection of a
jury. Jury selection starts tomorrow,
November 29th, [2011]. Be here at 8:30
[a.m.].
DEFENSE COUNSEL: Okay.
29 A-4041-11T4
THE COURT: So, they're going to learn about
this case for the first time today.
DEFENSE COUNSEL: So, the [c]ourt is aware.
Actually, there . . . had been some publicity
concerning this case at the time of . . . its
event. It showed up as front page news . . .
on The Bergen Record . . . a number of times.
Thus, despite the length and breadth of these discussions and the
specificity of defense counsel's questions, the judge failed to
disclose to the attorneys that in the course of the previous day's
ex parte interactions, the judge told the prospective jurors
defendant's name and the case's indictment number.
The first indication of the prospective jurors' presence in
the courtroom on Tuesday, November 29, 2011, is found on page
fifty of the 138-page transcript. After reading the charges
against defendant contained in the indictment, the judge addressed
the anticipated length of the trial: "Now, this case is a short
case compared to other cases that are being heard and jurors are
being selected for those trials right now. We have civil cases
and we have criminal cases right now where other judges are
selecting." With respect to scheduling, the judge stated:
You, obviously, have to be here today. You
would also have to be here tomorrow and
Thursday.
. . . .
Now, with regards to the following week,
it's December 13th, 14th and 15th . . . [a]nd
30 A-4041-11T4
then the following week would be December 20,
21st, 22nd, and if need be, the 23rd, but I
really do not believe that the case will go
further than that.
With regards to jury deliberations, if
you choose, you can come back the week after
Christmas to continue . . . but I do not
believe that this case will go past the 22nd.
During the jury selection process on November 29, 2011, a
prospective juror disclosed that he had researched the case on the
internet the previous evening (November 28, 2011) and had discussed
the case with his wife. The trial judge, having apparently
forgotten that she had disclosed the case name and indictment
number to the jurors the day before, insisted she did not know how
this particular juror had obtained the information:
THE COURT: I told [the jurors] to come the
next day.
DEFENSE COUNSEL: [Y]ou brought them in the
room. You told them the name of the case.
THE COURT: No. I don't agree with that. Your
objection is noted for the record [but] I
really doubt [it].
The record shows defense counsel made numerous attempts to
articulate his objections and preserve his argument on the record.
The judge continuously interrupted counsel, ultimately stating:
"Everything doesn't have to be done right now." Counsel asked the
judge to "consider taking a short break so I can articulate the
argument and I think, very honestly, that we may have to go to the
31 A-4041-11T4
tape from yesterday to find out what, in fact, was said." The
judge remained inflexible on the subject:
THE COURT: I'm not doing it now.
DEFENSE COUNSEL: -- but, Judge, we [are] going
to spend all our --
THE COURT: [Counsel], we're not doing it now.
DEFENSE COUNSEL: Judge, you have these --
THE COURT: Take a deep breath. We're not doing
it now, okay?
DEFENSE COUNSEL: -- I – oh, Judge, I take a
lot of deep breaths, but it may make it germane
because, you know, we may . . . spend the
whole afternoon picking people that we may
have to declare a mistrial.
THE COURT: Well, I don't agree with your -- I
don't agree with a mistrial.
DEFENSE COUNSEL: But, mistrial -- you haven't
-- but you didn't remember that you had said
something about it yesterday because . . .
obviously this [juror] said there's --
THE COURT: - - I had absolutely no interaction
with them other than to tell them to come back
the next day . . . I did tell them it was a
criminal case.
DEFENSE COUNSEL: -- [B]ut you must have said
the name of the [defendant] because how else
would he know?
THE COURT: All right. I'll . . . do it this
way. Even if I said the name, I still do not
find that it's a mistrial because there was
no selection . . . of any kind.
. . . .
32 A-4041-11T4
DEFENSE COUNSEL: [B]ut the problem was that
the defendant wasn't present at the beginning.
[(Emphasis added).]
When the prospective jurors returned to the courtroom, the
judge gave the following instructions with respect to conducting
independent research concerning the case:
And I know a lot of you have, you know,
strawberries, raspberries, and Blackberrys,
and you know, they're almost like a mini-
computer that you carry around with you, but
it is absolutely imperative that you do
absolutely no research about this particular
case with regards to your jury service, and
that's before, during and after the case. And
that's, obviously, to protect the integrity
of the case with regards to the evidence.
On December 1, 2011, defense counsel obtained an audio-video
recording of the November 28, 2011 proceedings and renewed his
objections to the judge's ex parte remarks to the jury. Counsel
began his address to the judge by quoting Rule 3:16(b), which
provides, in relevant part: "The defendant shall be present at
every stage of the trial, including the impaneling of the jury
. . . ." He then placed on the record how the jury selection
process had proceeded up to that point. Counsel then addressed
the trial judge directly as follows:
[W]hen the [c]ourt represented on the tape
that the case would be over by December 15th,
you never asked me that question -- and I won't
put [the prosecutor] in this spot, but I doubt
33 A-4041-11T4
you asked her that question either. [It was]
not only unrealistic, [it was] wrong. It's
wrong. And a whole discussion about . . .
[that] medical malpractice case that was going
to go 3, 4, 5, 6 weeks . . . . I can remember
it pretty well, where you said, "This way you
can get your jury service out of the way."
What message does that send to jurors?
That this is a . . . December inconvenience?
That they are to get their duty out of the
way? That's your words, Judge, "out of the
way."
In the meantime, she's not here. [J.T.]
is nowhere to be seen. You interact[ed] with
these jurors and you talk[ed] about a judicial
process with them without [defendant] present
at the time.
Defense counsel urged the court to declare a mistrial and
moved to admit the audio record of the November 28, 2011 ex parte
proceedings into evidence. The judge did not formally rule on
defendant's motion for a mistrial. When counsel sought to clarify
what he believed was a clerical error in the manner the audio tape
had been time-stamped, the judge reminded him that she had allowed
him only "five minutes" to place his argument on the record. The
judge then asked for the jury to be brought into the courtroom.
B
The trial judge's comments to the jury again became an issue
on December 14, 2011, the sixth day of witness testimony. On this
date, Juror Number 2 submitted a letter dated December 12, 2011,
from her employer, the District Manager of a nationwide pharmacy
34 A-4041-11T4
chain, requesting that she be excused from the trial the next day,
December 15, 2011. According to the letter, the juror was the
manager of a local outlet, and her "compensation [was] contingent
on the profitability of the store." In the words of the
prosecutor, "[i]t sounds like, if she doesn't work through the
holiday season, she's not going to get paid as much as she normally
would."
The prosecutor proposed that the judge question Juror Number
2 outside the presence of her fellow jurors "to see if she urged
her boss to write the letter" and determine whether she can
continue to serve as a juror in this case if her request was
denied. When the judge asked defense counsel for his thoughts
on the matter, counsel stated he viewed this juror's request as
both a byproduct of the trial judge's initial mishandling of the
jury selection process and an indication of how this threshold
error prejudiced defendant's right to a fair trial:
Well, Judge, actually this is a problem that
was created basically two weeks ago . . .
when you told the jury . . . when counsel
wasn't present . . . that this case would be
a short case [and that] this case would only
be to the 15th. [They were] misinformed
[about the probable length of the trial].
So I suspect that she's one of maybe several,
maybe many, who are now thinking the same
. . . thing. Because, when you go back and
look at it . . . we told them the 15th [and]
today's the 14th . . . .
35 A-4041-11T4
Although he believed the juror's request was legitimate
because December "is a critical time" for retailers "[a]nd this
poor lady . . . probably makes her money on an hourly basis or
overtime[,]" defense counsel asserted that "we're now . . .
[s]tuck." Before interviewing the juror, the judge stated: "I
told them from the very beginning that this is not an excuse
. . . to get off of jury service . . . because then we would have
excused everyone . . . ."
Ultimately, the judge rejected the juror's request. In an
attempt to justify her decision to deny the juror’s request, the
judge again mentioned the days available for her to return to work
when the trial was not in session, the availability of other store
employees to cover for her, and the letter the judge planned to
send to the District Manager explaining the situation. The record
shows, however, that Juror Number 2 repeatedly claimed that she
was not aware that the trial could go beyond December 15, 2011.
The judge ended the exchange by asking the juror "not to
discuss this with any of the other jurors." However, the judge
did not ask the juror: (1) whether remaining on the jury beyond
December 15, under these circumstances, constituted a financial
hardship for her; (2) whether remaining on the jury despite her
wishes to leave affected her ability to consider the evidence
36 A-4041-11T4
fairly and objectively; and (3) whether she had discussed anything
about the case with her District Manager or anyone else at her
place of employment.
C
At the conclusion of the charge conference held on December
21, 2011, the judge told the attorneys that, despite her repeated
admonitions to the jurors to not discuss the case among themselves,
it had come to her attention, "from all different areas . . . that
two jurors have been speaking to each other throughout the course
of the trial." Although she did not know whether the two jurors
were discussing matters related to the trial, the judge believed
it was necessary to interview the two jurors separately and outside
the presence of the remaining jurors. Both attorneys agreed this
was the proper way to address this issue.
Defense counsel asked the judge to summarize what she intended
to say to each juror. The judge noted that her main concern was
to determine "what the discussions were about." Counsel responded
that in addition to the substance of the jurors' conversations,
it was also important to determine if their conversations had
distracted them from "paying attention" to what was taking place
during the trial. As framed by defense counsel: "If they are
talking about lunch, . . . they're not paying attention to the
37 A-4041-11T4
witness." The judge agreed to "inquire about that," but added:
"I think we should take it one step at a time . . . ."
The judge addressed the issue the following day, December 22,
2011. Before the two jurors were brought to the courtroom, defense
counsel asked the judge to clarify, for the record, how this issue
came to her attention. After this discussion ended, the
Sheriff's Officer brought Juror Number 11 to the courtroom where
the following exchange ensued:
THE COURT: Good morning. How are you? You're
Juror No. 11. It's come to my attention
yesterday late in the day [after] you had
already left. All the jurors had already
left.
JUROR NUMBER 11: Yes.
THE COURT: You're cognizant of my . . . rulings
with regard to what the rules are about
discussing the case. Have you discussed the
case with any of the other jurors . . . in any
way?
JUROR NUMBER 11: No.
THE COURT: Any of the facts or any of the
testimony?
. . . .
JUROR NUMBER 11: No.
. . . .
THE COURT: [I]s . . . there anything about
what happened yesterday that would affect your
ability to be fair and impartial?
38 A-4041-11T4
JUROR NUMBER 11: What happened yesterday?
THE COURT: Well, with --
JUROR NUMBER 11: I just needed to leave on --
THE COURT: No. Just it came to my attention
that you were speaking to another juror in the
jury box. So is there anything that you were
discussing --
JUROR NUMBER 11: Oh, no.
THE COURT: -- with regards to the facts of the
case or the testimony?
JUROR NUMBER 11: We were kind of -- it was
amusing what was happening yesterday seemed
like a theater.
THE COURT: Okay. It was amusing . . . the
last part of the testimony?
JUROR NUMBER 11: Yes.
THE COURT: When everybody else --
JUROR NUMBER 11: With Santa and --
THE COURT: When everybody else in the jury box
was also laughing?
JUROR NUMBER 11: Yeah.
After Juror Number 11 left, but before the Sheriff's Officer
brought the next juror into the courtroom, defense counsel noted
that the judge did not point out to Juror Number 11 that "everybody
saw them talking all day long. [Y]our question simply directed
her to the end of the day." Counsel argued that the judge should
have asked Juror Number 11: "[W]hat were you talking about . . .
39 A-4041-11T4
all day?" The judge explained that Juror Number 11 found amusing
"the testimony was about Santa, and we were discussing the fact
that we needed a break." Defense counsel argued the questions
asked by the judge were inconsistent with the opened-ended approach
agreed to by the parties.
The prosecutor disagreed "that the two jurors were talking
to each other throughout the day." The prosecutor claimed that
based on defense counsel's "body position," she was not able to
see the witnesses as they testified. The prosecutor stated, "so
I basically just started looking at the jury for an hour, or two
hours . . . . And frankly, I did not see two jurors talking to
each other continually while there was testimony." This triggered
an active discussion between defense counsel and the judge about
the meaning of the judge's earlier statement that her "staff" had
seen two specific jurors leaning in and talking to each other
while the trial was in progress.
Defense counsel then asked the judge to recall Juror Number
11 so the judge can inquire further about the nature and substance
of her interactions with her fellow juror. The judge brought
Juror Number 11 back to the courtroom and asked her the questions
suggested by defense counsel. The juror consistently denied
talking to Juror Number 10 about anything to do with the trial
"throughout the course of the day." In response to the judge's
40 A-4041-11T4
question, Juror Number 11 reaffirmed her ability to judge the
evidence in the case fairly and impartially.
After overruling defense counsel's objections, the judge
brought Juror Number 10 into the courtroom and engaged in the
following colloquy on the record at sidebar, but outside the
presence of defendant and the attorneys:
THE COURT: I just wanted to let you know that
throughout the course of the trial it came to
my attention through, you know, various
sources that you may have been discussing the
case with some of the other jurors or juror.
Have you been discussing anything? Have you
been talking about anything?
JUROR NUMBER 10: No. Other than people's
shoes that they're wearing in court and stuff
like that.
THE COURT: Okay. What about Juror No. 11,
have you been discussing anything with her
about the case or anything? Just tell me what
the topics are.
Juror Number 10 denied talking to Juror Number 11 about
anything to do with the trial. She noted: "I'm with these people
every day. Obviously we talk to each other." Finally, Juror
Number 10 told the judge that her mind "wanders" after sitting for
three hours straight. She suggested that the court take more
frequent breaks. The judge told her to raise her hand "if you
need a break." The juror reaffirmed her ability to judge the
evidence fairly and impartially. The interview with the juror was
41 A-4041-11T4
recorded and played back to the attorneys and defendant at defense
counsel's request.
Defense counsel objected to the manner the judge conducted
what counsel characterized as a "private conversation" with Juror
Number 10, outside the presence of defendant. Although the judge
attempted to accommodate defense counsel's objections by playing
back the audio recording of the interview, the equipment
malfunctioned. The judge was thus compelled to recall Juror Number
10. The juror again affirmed that the conversations she had with
her fellow jurors involved innocuous topics like Christmas
shopping, her children, and her work. She unequivocally denied
discussing any aspect of the case and again emphasized the need
for more frequent breaks because she had "a very short attention
span." The judge conducted this interview in open court, in the
presence of defendant and the attorneys.
Defense counsel noted that this time, the juror was not asked
any questions about her ability to be able to remain fair and
impartial. Defense counsel characterized this omission as the
"gravamen of what the original complaint was when we started this
process." The prosecutor argued that both jurors answered the
court's questions candidly and forthrightly. There was no evidence
that the jury had been exposed to any extraneous information that
could compromise the deliberative process or that these two
42 A-4041-11T4
particular jurors had done anything improper. After considering
the arguments of counsel, the judge found no basis to remove Jurors
Numbers 10 and 11.
III
Our analysis of the trial judge's initial ex parte
interactions with the pool of prospective jurors is guided by
certain bedrock principles. These fundamental tenets of jury
trial management were succinctly explained by Justice LaVecchia
on behalf of a unanimous Supreme Court in Davis v. Husain, 220
N.J. 270 (2014):
Generally stated, avoiding the aura of
irregularity that arises from ex parte judge-
juror interactions has always been a goal in
and of itself. Canon 3 of the Code of Judicial
Conduct exhorts judges to "perform the duties
of judicial office impartially and
diligently," and specifically states, under
adjudicative responsibilities identified in
Canon 3(A)(6), that "[a] judge should accord
to every person who is legally interested in
a proceeding, or that person's lawyer, full
right to be heard according to law, and,
except as authorized by law, neither initiate
nor consider ex parte or other communications
concerning a pending or impending proceeding."
[Id. at 285 (alteration in original) (emphasis
added).]
The issue in Davis concerned a trial judge's ex parte
interactions with jurors after the jury had rendered its verdict,
conduct that the Court strongly criticized and expressly
43 A-4041-11T4
prohibited under its constitutional supervisory authority over
civil and criminal trials. Id. at 285-86 (first citing N.J. Const.
art. VI, § 2, ¶ 3; and then Pasqua v. Council, 186 N.J. 127, 152
(2006)). See also R. 1:16-1.10
In the spectrum that encompasses all of the probable points
of contact between trial judges and jurors, there is an origination
point and an end point. The ex parte interactions the Supreme
Court found highly inappropriate in Davis involved the end point
of this spectrum; the jury as a body had rendered its verdict.
The ex parte interactions that occurred here were at the
origination point, before the jury selection process had even
begun. In this context, our task is to determine how and to what
extent the judge's ex parte interactions at this embryonic phase
of the proceedings jeopardized defendant's right to a fair trial.
Although no reported decision has addressed the propriety of
ex parte interactions between a trial judge and a pool of
prospective jurors, the ethical principles articulated by the
Court in Davis apply with equal force here. In Davis, the Court
emphasized the need to avoid "an aura of irregularity that arises
10
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."
44 A-4041-11T4
from ex parte judge-juror interactions . . . ." Davis, 220 N.J.
at 285. The Court cited a judge's ethical responsibilities under
Canon 3 of the Code of Judicial Conduct to carry out judicial
functions in a manner that exhibits impartially. Ibid. These
ethical obligations are consistent with the clear mandate of Rule
3:16(b), which expressly gives a defendant the right to be present
"at every stage of the trial, including the impaneling of the
jury[.]"
We thus hold that the injunction imposed by the Court in
Davis against judges engaging in ex parte interactions with jurors
after the trial has concluded applies with equal force to any ex
parte interactions with prospective jurors, even those that occur
before the jury selection process has begun. Stated more
emphatically, there is no place for ex parte communications between
a trial judge and the jurors at any stage of the trial process.
As the Court held in Davis:
During the pendency of the trial, the rules
speak with crystal clarity. Rule 1:2-1
controls judge and jury interactions, and it
provides that "[a]ll trials, hearings of
motions and other applications, pretrial
conferences, arraignments, sentencing
conferences . . . and appeals shall be
conducted in open court unless otherwise
provided by rule or statute."
[Davis, 220 N.J. at 280 (alterations in
original).]
45 A-4041-11T4
We now turn to determine whether this judicial error had the
capacity of denying defendant her constitutional right to a fair
trial. "[A] trial judge's interactions with the jury must be
'guided by a concern for the weighty role that the judge plays in
the dynamics of the courtroom.'" State v. Gleaton, 446 N.J. Super.
478, 523 (App. Div. 2016) (quoting State v. Ross, 218 N.J. 130,
145 (2014)). Here, the judge's decision to interact ex parte with
the prospective jurors showed extremely poor judgment on the
judge's part and revealed the judge's failure to appreciate the
significance of the judge's role in a jury trial. However, as
valid as these concerns may be, the key question here is whether
the judge's ex parte interactions warrant the reversal of
defendant's conviction. The answer to this question must be based
on a fact-sensitive analysis.
A judge's improper ex parte interactions with a jury "does
not automatically require" the reversal of a jury's verdict. State
v. Morgan, 217 N.J. 1, 12 (2013) (quoting State v. Brown, 275 N.J.
Super. 329, 332 (App. Div. 1994)). Writing for the Court in
Morgan, Chief Justice Rabner reaffirmed the three-part test for
evaluating a judge's inappropriate communications with a jury:
(1) if the record affirmatively reveals that
the defendant was prejudiced, reversal is
required; (2) if the record does not show
whether the ex parte contact was prejudicial,
prejudice is presumed; and (3) if the record
46 A-4041-11T4
affirmatively discloses "that the
communication had no tendency to influence the
verdict," the outcome should not be disturbed.
[Ibid. (quoting State v. Auld, 2 N.J. 426, 432
(1949)).]
After carefully reviewing the record and mindful of the
Morgan/Auld three-part test, we conclude there is insufficient
evidence from which to find that the judge's ex parte
communications with the prospective jurors had a tendency to
influence the jury's verdict. We are nevertheless very troubled
by the way the trial judge acted in this case. Because there are
no reported opinions from any court in this State addressing this
issue, and as part of our didactic role as an intermediate
appellate court, we will review the areas where the judge erred
as a means of preventing their recurrence.
As a starting point, we conclude the trial judge had an
affirmative, ethical duty to disclose to the prosecutor and defense
counsel that she had ex parte interactions with the pool of
prospective jurors. This ethical duty to disclose is firmly
grounded in the Court's admonition in Davis to avoid "the aura of
irregularity that arises from ex parte judge-juror interactions"
and the Canon 3 of the Code of Judicial Conduct. Davis, 220 N.J.
at 285. Here, the judge's failure to disclose her interactions
with the prospective jurors cast a shadow of suspicion and secrecy
47 A-4041-11T4
over the jury selection process. We find particularly problematic
the judge's failure to make clear to the attorneys that during
this ex parte exchange, the judge: (1) referred to the case by
defendant's name and indictment number; (2) made repeated
factually unwarranted prognostications about the length of the
trial; (3) used language that conveyed an aura of levity regarding
jury service; and (4) suggested that serving as a juror on this
case would not be as demanding as serving in a medical malpractice
trial.
When viewed through the prism of the tragic, graphic facts
of this case, these comments were particularly inappropriate and
insensitive. The judge's comments estimating the case was likely
to take only "three to four days" could have been construed by a
rational juror as an indication of the judge's insightful
assessment of defendant's guilt. As the Supreme Court has noted:
"Trial and appellate courts acknowledge that juries, witnesses,
and other trial participants accord great weight and deference to
even the most subtle behaviors of the judge." State v. Figueroa,
190 N.J. 219, 238 (2007) (quoting Peter David Blanck, What
Empirical Research Tells Us: Studying Judges' and Juries'
Behavior, 40 Am. U.L. Rev. 775, 777 (1991)).
Furthermore, the judge's initial reluctance to acknowledge
to defense counsel that she engaged in this conduct and made these
48 A-4041-11T4
comments only served to exacerbate this "aura of irregularity."
Even after one of the prospective jurors was excused after
admitting that he had researched defendant's name on the internet
the previous night, the judge continued to claim she had no
recollection of mentioning defendant's name the previous day
during the ex parte interaction with the jurors. The judge did
not concede this error until defense counsel confronted her with
the audio recording of the ex parte exchange. However, even after
these issues were brought to her attention, the judge did not make
any attempt to mitigate the potential prejudice these comments
could have caused.
As the record shows, the judge's ex parte interactions
definitively adversely affected Juror Number 2. Six days after
trial testimony began, the judge received a letter from this
juror's employer, requesting the judge to release Juror Number 2
from serving on this case. In response to the judge's questions,
this juror testified that she specifically relied on the judge's
ex parte prognostication, made on November 28, 2011, that the
"criminal case . . . should only take three to four days[.]" After
questioning the juror directly and discussing the matter with
counsel, the judge denied the juror's request.
As agreed by counsel, the judge told the juror that the court
would write a letter to her District Manager explaining why she
49 A-4041-11T4
could not be released from the jury. This gesture, of course, did
not compensate the juror for the time she was missing from work
during this revenue-intensive time of year. The record also shows
that in response to the judge's question, Juror Number 2 reaffirmed
her ability to review the evidence fairly and impartially and to
follow the judge's instructions on the law. Juror Number 2 was
one of the jurors who deliberated and ultimately found defendant
guilty.
From this record, we do not have a rational basis to conclude
this incident tainted the jury's verdict. Even when considered
from the perspective of their cumulative effect, a new trial would
have been warranted only if these errors "could have a tendency
to influence the jury in arriving at its verdict in a manner
inconsistent with the legal proofs and the court's charge." Panko
v. Flintkote Co., 7 N.J. 55, 61 (1951). Stated differently, "[t]he
test is not whether the irregular matter actually influenced the
result, but whether it had the capacity of doing so." Ibid. We
conclude the errors the judge committed here do not give us
sufficient grounds to set aside the jury's verdict. That said,
it is obvious to us that the financial hardship endured by Juror
Number 2 could have been easily avoided had the judge, after
consulting with counsel, given the prospective jurors a reasonably
accurate estimate of the length of the trial.
50 A-4041-11T4
Jury service is one of our most important and cherished
constitutional rights. "Indeed, with the exception of voting, for
most citizens the honor and privilege of jury duty is their most
significant opportunity to participate in the democratic process."
Powers v. Ohio, 499 U.S. 400, 407 (1991). As the guardian of that
right, "the trial judge is entrusted with the responsibility of
controlling courtroom proceedings and is bounded by the law and
the rules of the court." Gleaton, 446 N.J. Super. at 514 (quoting
State v. Dorsainvil, 435 N.J. Super. 449, 480-81 (App. Div. 2014)).
Here, the trial judge failed to carry out this responsibility.
IV
Expert Witness Testimony
Dr. Jennifer Swartz, Bergen County Deputy Medical Examiner,
conducted M.T.'s autopsy and participated in the crime scene
investigation. Based on decedent's body temperature at the time
the police officers arrived at the scene and the condition of his
body, Dr. Swartz estimated that he died of asphyxia due to
suffocation between three and five o'clock in the morning of March
29, 2009.
Dr. Robert T. Latimer testified on defendant's behalf as an
expert in forensic psychiatry. Dr. Latimer met with defendant on
April 6, 2009, and again on January 29, 2010. After an initial
evaluation to assess defendant's competency to stand trial, Dr.
51 A-4041-11T4
Latimer concluded that defendant could not proceed to trial at the
time. He described defendant as "highly confused, distracted,
depressed" and unable to "intelligently appraise the circumstances
and her condition." According to Dr. Latimer, defendant did not
seem to understand why he had come to see her or what his function
was in these proceedings. Dr. Latimer testified that he was unable
to get information from defendant; she was "like a robot" and
talked "like a mechanical artifact." After their first meeting,
Dr. Latimer assigned her a GAF score of ten, and diagnosed her as
suffering from a brief psychotic disorder.
As Dr. Latimer explained, the disorder would feature
disorganized behavior, delusions, depression, homicidal and
suicidal thinking and noted the incoherence in defendant's police
statement. He opined that the incidents described by Maple Glen
staff, her family's concerns, her constant depression, and her
remarks about killing herself and M.T., were all signs of her
psychosis. Based on his review of the record, including materials
and conversations he had with defendant's family members, Dr.
Latimer opined defendant had an obsessive compulsive personality.
He also believed that she had been decompensating and was unable
to cope with her husband's illness. In his opinion, defendant's
inability to control the circumstances spiraling around her,
52 A-4041-11T4
coupled with the stressors related to M.T.'s illness, made her
deranged.
As a clinical term, Dr. Latimer defined "delusion" as "a
false belief that is elaborated in the mind of the person by a
process of mental illness" that is impermeable to logic. In his
view, defendant's delusion was her belief that she was going to
fix the family's problems by taking everyone to "a better world."
He thus opined that when defendant killed her husband, she was
suffering from a mental disease as a result
of which she was unable to understand that
what she was doing was wrong. And she was
unable to understand the consequences of those
acts. That she wasn't going to take him to a
better place. That she was killing him. And
you can't do that. She was unable to
understand the wrongfulness. It would have
been wrong in her mind to let him suffer. It
would have been wrong in her mind to go with
him and leave the kids alone. These were her
abnormal psychotic ideas of what was wrong
. . . . She had no concept of wrongfulness
at the time. She was at the end of [her] rope
. . . .
The court admitted Dr. Steven Simring as the State's mental
health expert. He met with defendant on July 1, 2010. Dr. Simring
disagreed with Dr. Latimer's medical findings and diagnosis that
defendant was clinically delusional and depressed when she killed
her husband. In Dr. Simring's opinion, defendant was merely "upset
and frustrated" and "angry." Although he noted that defendant had
obsessive traits, Dr. Simring opined she was markedly histrionic,
53 A-4041-11T4
theatrical, narcissistic and "self-centered . . . more than the
average person." He did not find that those traits were so
elevated as to constitute a psychiatric disorder. Dr. Simring
characterized the GAF score of ten that Dr. Latimer assigned to
defendant as "absurd." He acknowledged, however, that the
admitting physician at Bergen Regional had also assigned defendant
a GAF score of ten and specifically noted psychotic features.
Defendant argues that Dr. Simring improperly opined upon the
ultimate issue of defendant's guilt. Defendant also contends that
his presence in the courtroom violated the court's sequestration
order. However, because defendant did not raise these issues
before the trial court, we must review these arguments under the
plain error doctrine. R. 2:10-2. This means we must disregard
these arguments unless they are "of such a nature as to have been
clearly capable of producing an unjust result . . . ." Ibid.We will address the "ultimate issue" argument first. The
record shows that as part of his direct testimony, the prosecutor
asked Dr. Simring the following questions:
Q. And Doctor . . . do . . . you know the
legal standard or legal definition of insanity
in the State of New Jersey . . . ?
A. Legal insanity and diminished capacity,
yes.
Q. Okay. Why don't you start first with legal
insanity. Tell us what your professional
54 A-4041-11T4
opinion is based on with a reasonable degree
of medical certainty.
A. Well, the Judge will charge you on legal
insanity, so I'm going to be very careful not
to overstep my . . . bounds. I'm just telling
you what I have found, and the way I see it.
Ultimately, you will reach that decision based
on the Judge's charge.
Legal insanity . . . contains two parts.
One, Part A, you have to have a serious mental
illness. And then, Part B, it has to lead to
something. Now the Legislature . . . or the
law never specifies in this State or any other
state exactly what the illness is supposed to
be. That's left to the professionals. But
it has to be serious.
. . . .
As a result of that serious mental
illness -- that's' Part A. Part B is that
either you didn't know the nature or quality
of your act, or, B, that you didn't know it
was wrong. Now that means that a person
suffering say from schizophrenia or a serious
bipolar disorder, which are serious mental
illnesses, or even a genuine brief psychotic
disorder would meet Part A if they have the
serious mental illness. But that alone is not
enough.
They then have to show how that illness
deprived them of one of three things. They
didn't know the nature of the act. They had
a gun, for example, and they didn't know it
was a gun. They thought it was a toy. Or
they had a bag, and they didn't know it was a
bag. They thought it was something else. They
didn't know the quality of the act. And that
means they thought that by putting the bag
over the mouth, they thought it was giving
oxygen. And this is not necessarily because
of low intelligence. It could be because of
55 A-4041-11T4
a delusion. God told you this bag has oxygen.
And this happens.
Or, number three, because of this mental
illness, you did what you did because you
thought it was right. And the . . . clearest
example of that is . . . someone who say shoots
a stranger because he believes that the
stranger has this water bottle, and this is a
gun, and sees the gun, and genuinely hears God
telling him it's a gun, and shoots this
stranger in what he believes to be self-
defense. Self-defense is not wrong.
So it is my testimony that [defendant]
does not meet any of the prongs of the insanity
defense. She does not have a significant
mental illness. She was certainly upset and
overwhelmed, but that's not [an] illness. She
knew the nature of the act. That this was a
bag. She knew what a bag could do. In fact,
that was her specific intent. And she knew
that what she was doing was wrong, even if she
at that point thought she had good
justification.
As defined in our Criminal Code, insanity excuses a defendant
from being responsible for the crime. The Code defines legal
insanity as follows:
A person is not criminally responsible
for conduct if at the time of such conduct he
was laboring under such a defect of reason,
from disease of the mind as not to know the
nature and quality of the act he was doing,
or if he did know it, that he did not know
what he was doing was wrong.
[N.J.S.A. 2C:4-1.]
As an affirmative defense, defendant has the burden to prove,
by a preponderance of the evidence, that she "was laboring under
56 A-4041-11T4
such a defect of reason, from disease of the mind as not to know
the nature and quality of the act [she] was doing, or if [she] did
know it, that [she] did not know what [she] was doing was wrong."
Ibid. Although the statute does not define "preponderance of the
evidence," the model charge on "insanity" includes the following
definition:
The term "preponderance of the evidence"
means the greater weight of credible evidence
in the case. It does not necessarily mean the
evidence of the greater number of witnesses
but means that evidence which carries the
greater convincing power to your minds.
Keep in mind, however, that although the
burden rests upon the defendant to establish
the defense of insanity by a preponderance of
the credible evidence, the burden of proving
the defendant guilty of the offense charged
here beyond a reasonable doubt is always on
the State, and that burden never shifts.
[Model Jury Charges (Criminal), "Insanity
(N.J.S.A. 2C:4-1)" (approved Oct. 17, 1988).]
Distilled to its essence, "one who meets the test for insanity,
that is, one who lacks the ability to distinguish between right
and wrong, is thereby excused from criminal culpability." State
v. Gorthy, 226 N.J. 516, 533 (2016) (quoting State v. Handy, 215
N.J. 334, 357 (2013)).
In State v. Singleton, 211 N.J. 157, 177 (2012), the Court
revisited its holding in State v. Worlock, 117 N.J. 596, 610
(1990), and reaffirmed "that legal and moral wrong are usually
57 A-4041-11T4
'coextensive,' especially when the criminal act at issue is murder
. . . ." Singleton, 211 N.J. at 177. The Court also noted that
"in the odd case in which a defendant is able to recognize that
his actions are legally wrong but is nonetheless incapable of
understanding that they are morally wrong, we held that 'the court
should instruct the jury that 'wrong' encompasses both legal and
moral wrong.'" Ibid. (quoting Worlock, 117 N.J. at 611).
Here, there is no question that expert psychiatric testimony
was properly admitted under N.J.R.E. 702 because psychiatry, as a
field of medicine, is beyond the ken of the average juror.
Psychiatric testimony was necessary to assist the jury in
determining whether, at the time she took her husband's life,
defendant was "laboring under such a defect of reason, from disease
of the mind as not to know the nature and quality of the act
. . . or if [defendant] did know it, that [she] did not know that
what [she] was doing was wrong." N.J.S.A. 2C:4-1. See also State
v. Odom, 116 N.J. 65, 71 (1989).
In State v. Simms, 224 N.J. 393, 396 (2016), the Court
reaffirmed its holding in Cain, that "an expert's opinion on the
defendant's state of mind encroaches on the exclusive domain of
the jury as trier of fact." Simms, 224 N.J. at 396. Here, the
prosecutor asked Dr. Simring to explain to the jury the concept
of "legal insanity" and then to opine on whether defendant's
58 A-4041-11T4
conduct satisfied the elements of this affirmative defense. As
the following excerpt from Dr. Simring's testimony shows, the
State's expert witness' response usurped the jury's role by making
a definitive declaration of this jury question:
[Defendant] does not meet any of the prongs
of the insanity defense. She does not have a
significant mental illness. She was certainly
upset and overwhelmed, but that's not [an]
illness. She knew the nature of the act. That
this was a bag. She knew what a bag could do.
In fact, that was her specific intent. And
she knew that what she was doing was wrong,
even if she at that point thought she had good
justification.
[(Emphasis added).]
In Cain, the Supreme Court reaffirmed its prior holding in
State v. Reeds, 197 N.J. 280, 284-85 (2009), that an expert's
"ultimate-issue testimony" usurps the "jury's singular role in the
determination of defendant's guilt and irredeemably taints the
remaining trial proofs." Cain, 224 N.J. at 424 (quoting Reeds,
197 N.J. at 300). Although defense counsel did not object at the
time Dr. Simring gave this testimony, this colossal error was
clearly capable of producing an unjust result.
Defendant had lived a conventional, law abiding life until
the day she suffocated her husband, and attempted to kill herself
and her two children. The evidence presented to the jury at trial
showed this aberrational behavior by defendant was preceded by a
59 A-4041-11T4
stroke suffered by her then fifty-year-old husband that left him
paralyzed and completely dependent on defendant for all of his
needs. M.T.'s devastating health crisis also had catastrophic
financial consequences on the family. Defendant was the only
income-producing person; M.T.'s immediate and long-term needs were
not covered by insurance or Medicaid. A number of witnesses at
trial described defendant's behavior on the days leading to her
husband's discharge from the rehabilitation facility as
obsessively preoccupied with the numerous problems, both practical
and financial, associated with M.T.'s homecare.
The enormity of these problems became manifest to defendant
on the day M.T. arrived home after he was discharged from the
rehabilitation facility. Defendant's burden of proof under the
insanity defense required her to convince the jury that the greater
weight of credible evidence showed that she was not mentally
capable of distinguishing right from wrong when she committed
these horrific crimes. Dr. Simring's testimony usurped the jury's
exclusive role to determine whether defendant satisfied her burden
of proof. The fact that the jury was allowed to consider this
critically improper testimony denied defendant her right to a fair
trial.
60 A-4041-11T4
V
Based on this conclusion, we do not reach defendant's
remaining arguments. Defendant's conviction is reversed. The
matter is remanded to the Criminal Part for retrial or for such
other disposition as may be warranted. We do not retain
jurisdiction.
61 A-4041-11T4