State v. Michael Ross, II (072042)

SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized).
State v. Michael Ross II (A-67-12) (072042)
Argued January 6, 2014 – Decided June 24, 2014 – Corrected July 3, 2014
PATTERSON, J., writing for a majority of the Court.
In this appeal, the Court considers when a trial court may instruct jurors to resume deliberations and
attempt to reach a verdict after learning that the jury was deadlocked and whether a trial court may seat an alternate
juror to begin new deliberations after a juror on a previously deadlocked jury becomes ill.
On October 30, 2003, two men were shot and killed while sitting in a parked car. Defendant was indicted
for two counts of first-degree murder and related offenses, including hindering apprehension. He proceeded to a
jury trial in April 2008. The jury deliberated for several days, but stopped several times to communicate with the
court. Two of those interruptions are at issue on appeal. The first occurred on the fifth day of deliberation when the
jury advised the court that it could not reach a unanimous decision on any count of defendant’s indictment. The
court directed the jury to resume deliberations and to try to reach an agreement. The second occurred when, after
deliberating for several more hours, the jury informed the court that Juror No. 5 was sick. When the trial judge
asked Juror No. 5 about her condition, she confirmed that she had a headache and was nauseous. The trial judge
dismissed her for the day, but told her to call the court in the morning if she was unable to report. The next morning,
after Juror No. 5 confirmed her illness, the judge excused her from further participation in the trial.
Finding that the jury had not yet made any factual findings or drawn any conclusions about defendant’s
guilt or innocence, the trial judge directed the clerk to randomly select an alternate. Both the prosecutor and defense
counsel confirmed on the record that they had no objection to the court seating an alternate. Once the alternate was
selected, the court advised the jurors to set aside any statements made in deliberations prior to the departure of the
excused juror and to disregard any opinions that juror may have expressed. The reconstituted jury commenced
deliberations on April 23, 2008 and, after deliberating for more than sixteen hours over the course of four days,
announced that it had reached a verdict. The jury convicted defendant of all of the charges.
In an untimely motion for a new trial, defendant objected to the substitution of the juror and claimed that
the court should have ordered a mistrial. The trial court denied defendant’s motion. The court sentenced defendant
to consecutive terms of life imprisonment on each of the murder convictions, and a five-year term of incarceration,
to run consecutively to defendant’s two terms of life imprisonment, on the hindering apprehension charge. An
Appellate Division panel reversed defendant’s conviction and remanded for a new trial, holding that the trial court’s
post-deadlock substitution of a juror constituted plain error. The panel construed the original jury’s declaration that
it could not reach a verdict to strongly suggest that some jurors had made up their minds about the case, and were
thus incapable of starting new deliberations.
The State filed a petition for certification, and the Appellate Division stayed its judgment pending the
determination of the State’s petition. This Court granted certification. 214 N.J. 118 (2013).
HELD: Where there was nothing in the jury’s communications with the trial court to suggest that any juror had
reached a determination on a factual or legal issue, the trial court’s decision to instruct the deadlocked jury to continue
deliberations and attempt to reach an agreement, and to later substitute an alternate for an ill juror after the deadlock had
been announced, did not constitute plain error.
1. Since defendant did not object to the trial court’s decision to instruct the jury to continue deliberations after
reporting the deadlock, or to its decision to substitute an alternate for an ill juror, the standard of review is plain
error. Plain error is any error or omission that is of such a nature as to have been clearly capable of producing an
unjust result. (pp. 11-12)
1
2. Once the jury expressed that it could not reach a unanimous decision, the trial court properly admonished the
jurors to deliberate with a view to reaching an agreement, to independently decide the case after an impartial
consideration of the evidence with fellow jurors, and to re-examine and change individual views if they are
erroneous. (p. 13)
3. A jury verdict must not be the product of coercion. Here, the jury did not signal an intractable divide that
required declaration of a mistrial. The trial court properly exercised its discretion in response to the jury’s
communication of an impasse by providing the charge and directing the jury to resume deliberations. (pp. 14-16)
4. Rule 1:8-2(d)(1) sets forth the procedure for the substitution of an alternate juror for a juror who “dies or is
discharged by the court because of illness or other inability to continue.” The trial court must appraise the impact of
a juror substitution on the jury process without tainting that process with intrusive questions and must distinguish
between reasons that are personal to the juror, which may permit a substitution under the rule, and issues derived
from the juror’s interaction with the other jurors or with the case itself, which may not. (pp. 17-18)
5. Physical illness, emotional condition, and financial hardship have each been recognized as a basis for removal
and replacement of a juror, but if a request to discontinue service also relates to factors arising from the juror’s
interactions with the other jurors, discharge from further service constitutes an abuse of discretion. (pp. 19-20)
6. The trial court should consider whether a reconstituted jury will be in a position to meaningfully evaluate and
discuss the case. The court should consider the timing of the juror’s departure, the explanation of the problem
prompting the inquiry, and any communications from the jury that may indicate that deliberations have progressed
to the point at which a reconstituted and properly charged jury will be unable to conduct open and mutual
deliberations. (pp. 21-23)
7. The trial judge should conduct a cautious inquiry of the juror and direct the juror not to reveal confidential jury
communications. Then, the trial judge may consider the duration of the jury’s deliberations prior to the departure of
the juror and, without applying an inflexible rule, determine whether the jury appears to have progressed to a stage
at which issues have been decided and deliberations cannot commence anew. If a partial verdict has been rendered,
or the circumstances otherwise suggest that jurors have decided one or more issues in the case, the trial court should
not authorize a juror substitution, but should declare a mistrial. If the trial court permits the substitution of an
alternate juror, it must instruct the newly composed jury before its deliberations. (pp. 24-25)
8. Here, the original jury never announced that it had reached a determination of guilt or innocence, nor was there
a suggestion that the juror’s inability to continue derived from her view of the case or her discussions with her
colleagues. There was no evidence that she was a holdout juror, manifested bias, had confronted hostile colleagues,
or that disputes had arisen in the jury room. After she was replaced, the newly constituted jury deliberated
extensively and rendered a verdict only after deliberating for a period sufficient to permit an open and thorough
discussion of the issues. (pp. 25-27)
9. To the extent that State v. Banks, 395 N.J. Super. 205, (App. Div. 2007) barred trial courts from substituting a
juror and directing new deliberations, by virtue of the fact that the original jury had reached an initial impasse and
was charged to continue deliberations and attempt to reach an agreement, it is overruled. An initial impasse does not
necessarily signal the end of meaningful deliberation. To the contrary, the charge to a deadlocked jury instructs
them to consider the viewpoints of other jurors with an open mind. A juror substitution, necessitated by illness, that
conforms with Rule 1:8-2(d)(1) does not alter that conclusion. (pp. 28-30)
The judgment of the Appellate Division is REVERSED and the matter is REMANDED to the Appellate
Division for consideration of the issues that the panel did not reach in light of its resolution of the jury substitution
issue.
JUDGE CUFF, DISSENTING, expresses the view that because the jury had previously reached an
impasse, its deliberations had proceeded too far to permit the trial court to substitute an alternate.
2
CHIEF JUSTICE RABNER, JUSTICE LaVECCHIA, JUSTICE FERNANDEZ-VINA, and JUDGE
RODRÍGUEZ (temporarily assigned) join in JUSTICE PATTERSON’s opinion. JUDGE CUFF
(temporarily assigned) filed a separate, dissenting opinion. JUSTICE ALBIN did not participate.
3
SUPREME COURT OF NEW JERSEY
A-67 September Term 2012
072042
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
MICHAEL ROSS II,
Defendant-Respondent.
Argued January 6, 2014 – Decided June 24, 2014
– Corrected July 3, 2014
On certification to the Superior Court,
Appellate Division.
Nancy A. Hulett, Special Deputy Attorney
General/Acting Assistant Prosecutor, argued
the cause for appellant (Andrew C. Carey,
Acting Middlesex County Prosecutor,
attorney).
Jay L. Wilensky, Assistant Deputy Public
Defender, argued the cause for respondent
(Joseph E. Krakora, Public Defender,
attorney).
JUSTICE PATTERSON delivered the opinion of the Court.
During the trial of defendant Michael Ross II for two
counts of first-degree murder, two weapons offenses and
hindering apprehension, the jury twice interrupted its
deliberations to communicate with the trial court. On the fifth
day of deliberations, the jury advised the court that it was
“unable to reach a unanimous decision on any count” of
1
defendant’s indictment, and sought instruction from the court.
The trial court directed the jury to resume deliberating, with a
view to reaching an agreement, if such agreement could be
achieved without impairing the judgment of individual jurors.
The jury complied, but later that day communicated with the
court to report that one of the jurors had become ill. After
dismissing the jury for the day and speaking with the ailing
juror the following morning, the trial court excused her from
further service. Without objection from the State or defendant,
the court substituted an alternate juror for the excused juror.
The reconstituted jury, instructed to initiate new deliberations
with the full participation of the substituted juror,
deliberated for more than sixteen hours and convicted defendant
of all charges. Defendant appealed, and an Appellate Division
panel reversed, holding that the trial court’s decision to
substitute an alternate for the ailing juror constituted plain
error.
We hold that in the circumstances of this case, the trial
court properly addressed both of the issues raised by the jury
in the course of its deliberations. The trial court’s
instruction to the jury to continue deliberations,
notwithstanding its initial report of a deadlock, conformed to
this Court’s decision in State v. Czachor, 82 N.J. 392, 404-06
(1980). Confronted with a report that a juror was unable to
2
continue because she was ill, the trial court verified that the
juror’s inability to continue was prompted by her condition,
rather than a dispute among the jurors. The trial court then
substituted an alternate in accordance with Rule 1:8-2(d)(1) and
properly instructed the reconstituted jury to commence new
deliberations. In its response to both developments, the trial
court preserved the confidentiality and integrity of the jury’s
deliberations and protected defendant’s right to a fair trial.
Accordingly, we reverse the judgment of the Appellate
Division, and remand to the Appellate Division for consideration
of the remaining issues that the panel did not reach in light of
its resolution of the jury substitution issue.
I.
On October 30, 2003, Alesky Bautin and Sergey Barbashov
were shot and killed while sitting in Barbashov’s parked vehicle
in front of an apartment complex in Avenel. More than three
years later, defendant was indicted for two counts of first-
degree murder, N.J.S.A. 2C:11-3(a)(1),(2); second-degree
possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-
4(a); third-degree unlawful possession of a weapon, N.J.S.A.
2C:39-5(b); and third-degree hindering apprehension or
prosecution, N.J.S.A. 2C:29-3(b)(1).
Defendant’s trial commenced on April 1, 2008, and continued
for eight trial days. The State’s theory of the case was that
3
defendant shot the victims after mistaking one of them for a man
who had pointed a gun at him from a car similar to the victims’
vehicle. In the course of the trial, the jury heard the
testimony of twenty witnesses, including three expert witnesses
called to opine as to the cause of the victims’ deaths. The
prosecution and defense introduced into evidence more than one
hundred exhibits. Defendant testified on his own behalf,
denying any involvement in the murders. During summation,
defense counsel suggested that two of defendant’s acquaintances,
not defendant, were responsible for the shooting.
The trial court charged the jury on April 16, 2008. At the
close of the charge, the trial court advised the jurors that
they could pose questions or communicate with the court by
writing a note and handing it to a court officer. The trial
judge promised to respond to any questions posed as quickly as
possible, and admonished the jurors to avoid disclosing the
status of their deliberations to the court and counsel in the
event that they decided to ask a question. The court then
randomly selected three jurors to serve as alternates.
The jury deliberations commenced during the afternoon of
April 16, 2008, and continued that day for less than an hour.
The jury then deliberated for more than four hours on April 17,
2008, and for a similar period on April 18, 2008. During the
first three days of deliberation, the jury posed procedural
4
questions to the trial judge and requested readbacks of the
testimony of two witnesses. The jury deliberated for more than
five hours on the fourth day, April 21, 2008. Late that day,
the jurors sought clarification “in layman’s terms” of the
meaning of reasonable doubt. They were told by the trial court
that they would be charged on that subject the following day,
and that they should suspend deliberations for the evening. The
jury was excused at 3:42 p.m.
The following day, after being charged with respect to
reasonable doubt, the jury sent to the trial court a note
stating: “The jury was unable to reach a unanimous decision on
any count. What is your next instruction?” With no objection
from either counsel, the trial court read to the jury the Model
Criminal Jury Charge based on Czachor, supra, 82 N.J. 392 (the
Czachor charge). See Model Jury Charge (Criminal), “Judge’s
Instructions on Further Jury Deliberations” (Jan. 14, 2013).
The trial court instructed the jury:
So, ladies and gentlemen, it’s your duty as
jurors to consult with one another and to
deliberate with a view to reaching an
agreement, if you can do so without violence
to individual judgment. Each of you must
decide the case for yourself, but you do so
only after an impartial consideration of the
evidence with your fellow jurors. In the
course of your deliberations, do not
hesitate to reexamine your own views, change
your opinion, if convinced it’s erroneous.
But do not surrender your honest conviction
as to the weight or effect of evidence
5
solely because of the opinion of your fellow
jurors or for the mere purpose of returning
a verdict. You are not partisans. You are
judges, judges of the facts.
After receiving the Czachor charge and taking a lunch
break, the jury deliberated for about two and one-half hours.
The trial judge then received a note from the jury stating:
“Juror No. 5 is sick and does not expect to be here tomorrow.
Thank you.” In the presence of counsel, the trial court
questioned Juror No. 5 about her condition. Juror No. 5 stated
that she had “a terrible headache,” and that her “stomach [was]
nauseous.” The trial judge told the juror “to go home” for the
day and to call the court in the morning if she was “not feeling
up to” coming in.
The following day, April 23, 2008, Juror No. 5 called the
trial judge’s chambers and advised the judge’s assistant that
she was “still ill” and that she could not return to court.
With counsel present, the trial judge contacted the juror by
telephone. The juror confirmed on the record that she had
advised the judge’s assistant that she remained ill. She stated
that she had a “[h]eadache and sore throat and nauseous
stomach,” and that she “wouldn’t be able to make it” to court
that day. After verifying that neither counsel had questions
for the juror, the judge excused her from further participation
6
in the trial, admonished her not to discuss the case while it
remained pending, and thanked her for her service.
The trial court then confirmed on the record a prior
discussion in which the court and counsel “agreed that [the
court was] going to substitute a new juror.” The court noted
that although the jury had deliberated for more than four days,
there was no indication that it had “made any actual fact
findings or reached any determinations of guilt or innocence,”
or that it had rendered a partial verdict. The court concluded
that there was “nothing that would indicate that a new juror
[would] not play a meaningful role in deliberations.” It
recounted the communications received from the jury the previous
day, and asked counsel to confirm their positions regarding the
replacement of the juror on the record.
The prosecutor noted her agreement with the court’s
decision. Defense counsel stated that he had no objection. He
noted “that had the jury come back” after being charged to
resume deliberations, and stated that it could not reach a
unanimous verdict, “then we’d be talking [about] a different
scenario.” Defense counsel commented that since there was only
one note from the jury indicating its inability to reach a
verdict, followed by the trial court’s Czachor instruction and
the report of the juror’s illness, “I don’t think there’s any
credible way to even form an objection, if I had one.”
7
The court clerk then randomly selected one of the three
alternate jurors to serve as a substitute juror. In accordance
with the Model Criminal Jury Charge, the trial court advised the
jurors that “as of this moment, you are now a new jury.” It
instructed them to set aside any statements made in
deliberations prior to the departure of the excused juror and to
disregard any opinions expressed by that juror. The court
admonished the jury to “consider all evidence presented at trial
as part of your full and complete deliberations until you reach
your verdict.” See Model Jury Charge (Criminal), “Judge’s
Instructions When Alternate Juror Empaneled After Deliberations
Have Begun” (Jan. 14, 2013).
The reconstituted jury commenced its deliberations on April
23, 2008, after receiving the trial court’s instructions. It
met for five hours before being excused for the day. The jury
deliberated for four and one-half hours on April 24, 2008, and
requested a readback of testimony different from the testimony
that the original jury had requested during its deliberations.
The jury deliberated for five and one-half hours on April 25,
2008. On April 29, 2008, the fourth day of its deliberations,
the jury met for about two hours before announcing that it had
reached a verdict. In total, the reconstituted jury deliberated
for more than sixteen hours before arriving at a verdict. The
jury convicted defendant of all charges pending against him.
8
More than three months after the verdict, in an untimely
motion for a new trial, defendant objected for the first time to
the substitution of the juror. Rule 3:20-1; Rule 3:20-2.
Defense counsel conceded that the trial court and counsel had
done an “excellent job” of crafting a solution following the
juror’s illness. He also acknowledged that the reconstituted
jury was “particularly good,” as it was observed discarding
papers that had been posted in the jury room during the original
jury’s pre-substitution discussions, consistent with the court’s
instruction to begin deliberations anew. He argued, however,
that the Appellate Division opinion in State v. Banks, 395 N.J.
Super. 205 (App. Div.), certif. denied, 192 N.J. 598 (2007),
barred the substitution of a juror in the circumstances of this
case, and compelled the trial court to declare a mistrial. The
trial court denied the motion for a new trial, distinguishing
Banks on the ground that the juror in that case was removed for
personal bias, not due to an illness.
The trial court merged defendant’s weapons convictions into
his murder convictions, and sentenced him to a term of life
imprisonment subject to an eighty-five percent parole
ineligibility period under the No Early Release Act, N.J.S.A.
2C:43-7.2, on each of the two first-degree murder convictions,
with the two terms to run consecutively. It also sentenced
defendant to a five-year term of incarceration, to run
9
consecutively to defendant’s two terms of life imprisonment, on
the hindering apprehension charge.
An Appellate Division panel reversed defendant’s conviction
and remanded for a new trial. It held that the trial court’s
“post-deadlock substitution” of a juror constituted plain error.
The panel construed the original jury’s declaration that it
could not reach a verdict to strongly suggest that some jurors
had made up their minds about the case, and were thus incapable
of starting deliberations anew. The Appellate Division panel
expressed doubt that the alternate juror could fully participate
in the deliberations of the reconstituted jury given the
original jury’s progress to the point of declaring a deadlock.
The State filed a petition for certification, and the
Appellate Division stayed its judgment pending the determination
of the State’s petition. We granted certification. 214 N.J.
118 (2013).
II.
The State challenges the Appellate Division’s conclusion
that the trial court committed plain error. It contends that
the trial judge properly substituted an alternate juror for the
juror whose illness prevented her continued involvement in the
case. It argues that there is no per se rule setting a point in
time, during the deliberations of an original jury, after which
a trial court may not substitute an alternate juror for a
10
departing juror and then direct the reconstituted jury to begin
its deliberations anew. The State contends that in this case,
the original jury deliberated for a reasonable amount of time in
light of the length and complexity of the trial. Further, it
argues that the reconstituted jury’s protracted discussions
following the substitution of an alternate for an ill juror
confirm that it properly conducted new deliberations leading to
the verdict.
Relying on the Appellate Division’s decision in Banks,
supra, 395 N.J. Super. 205, defendant argues that the Appellate
Division properly found plain error in the trial court’s
substitution of an alternate for the ill juror in this case, and
that no juror substitution should take place following a
declaration of an impasse and an instruction to the jury to
resume deliberations. Defendant urges the Court to rule that a
trial court should rarely substitute a juror for any reason
after a case goes to the jury. He maintains that the longer the
original jury has discussed the case, the less likely it is that
a reconstituted jury will be in a position to commence fair and
open-minded deliberations. Defendant requests that the Court
affirm the Appellate Division’s judgment.
III.
Since defendant failed to object to the trial court’s
decision to substitute an alternate for an ill juror, we review
11
the trial court’s decision under the standard of plain error.
In the interests of justice, an appellate court may “notice
plain error not brought to the attention of the trial or
appellate court.” R. 2:10-2. Plain error is “[a]ny error or
omission [that] . . . is of such a nature as to have been
clearly capable of producing an unjust result.” R. 2:10-2.
In this case, we measure against the plain error standard
the trial court’s sequential responses to two developments in
the course of jury deliberations: (1) the court’s decision to
give an instruction pursuant to Czachor, supra, 82 N.J. at 404-
06, rather than declaring a mistrial, in the wake of the jury’s
announcement of a deadlock; and (2) its substitution of an
alternate juror for a juror who became ill, followed by an
instruction to the reconstituted jury to deliberate anew. We
consider these issues in turn.
A.
In Czachor, this Court provided guidance to trial courts
confronted with a jury’s declaration that its deliberations have
progressed to an impasse. Ibid. The Court found plain error in
a trial court’s repeated charge to a deadlocked jury in
accordance with Allen v. United States, 164 U.S. 492, 17 S. Ct.
154, 41 L. Ed. 528 (1896), which it had previously upheld in
State v. Bland Williams, 39 N.J. 471, 484-85, cert. denied, 374
U.S. 855, 83 S. Ct. 1924, 10 L. Ed. 2d 1075 (1963). Id. at 402,
12
404. The Allen charge directed jurors to “‘listen, with a
disposition to be convinced, to each other’s arguments,’” and
admonished a dissenting juror to “‘consider whether his doubt
was a reasonable one . . . [and] whether [the juror] might not
reasonably doubt the correctness of a judgment which was not
concurred in by the majority.’” Id. at 395-96 (alternations in
original) (quoting Allen, supra, 164 U.S. at 501, 17 S. Ct. at
157, 41 L. Ed. at 531). This Court considered the Allen charge
to have “coercive effects upon jury deliberations,” and
disapproved both its application and the New Jersey Model
Criminal Jury Charge on this issue then in use in state court
criminal trials. Id. at 394, 404-05. In its stead, this Court
adopted the model charge suggested by the American Bar
Association (ABA). Id. at 405-06 (citing ABA Project on Minimum
Standards for Criminal Justice, Standards Relating to Trial by
Jury, § 5.4, at 145-46 (Approved Draft 1968)).1
Accordingly, New Jersey’s Model Criminal Jury Charges now
include the Czachor charge, to be given to a jury that has
announced a deadlock. That charge admonishes jurors to
“deliberate with a view to reaching an agreement,” to
independently decide the case “after an impartial consideration
1
The current ABA standard is virtually identical to the one
found in the 1968 Approved Draft. See ABA Standards for
Criminal Justice, Discovery and Trial by Jury § 5.4 (3d ed.
1996).
13
of the evidence with fellow jurors” and to re-examine and change
individual views if they are erroneous; it also counsels them to
avoid surrendering an honest conviction simply to conform to
other jurors’ opinions or to render a verdict. Model Jury
Charge (Criminal), “Judge’s Instructions on Further Jury
Deliberations” (Jan. 14, 2013).2
The trial court’s determination as to whether a Czachor
charge is warranted requires a careful analysis of the
circumstances. When a jury communicates a deadlock, trial
courts “should be guided in the exercise of sound discretion by
such factors as the length and complexity of trial and the
quality and duration of the jury’s deliberations.” Czachor,
supra, 82 N.J. at 407. Consistent with the principle that a
jury verdict must not be the product of coercion, appellate
review of a trial court’s supplemental instruction is “guided by
a concern for the weighty role that the judge plays in the
dynamics of the courtroom.” State v. Figueroa, 190 N.J. 219,
238 (2007) (citing State v. Tyler, 176 N.J. 171, 181 (2003)).
The trial judge’s discretion must be exercised in a manner that
ensures “‘a jury verdict free from untoward interference from
2
In a January 2013 reorganization of the Model Criminal Jury
Charges, the Czachor charge was “removed from the Criminal Final
Charge and made into a separate Non 2C charge.” Notice to the
Bar, Updates to Model Criminal Jury Charges, 211 N.J.L.J.
319 (Feb. 4, 2013). However, the language of the instruction to
be given to the jury is unaltered since the trial at issue in
this case.
14
any source, including the court.’” State v. Shomo, 129 N.J.
248, 257 (1992) (quoting State v. Collier, 90 N.J. 117, 122
(1982)); see also State v. Corsaro, 107 N.J. 339, 346 (1987)
(cautioning that “the deliberative process . . . must be
insulated from influences that could warp or undermine the
jury’s deliberations and its ultimate determination”). When the
“‘difference of opinion between members of the jury is clearly
intractable,’ . . . then the jury is deadlocked and a mistrial
should be declared.” Figueroa, supra, 190 N.J. at 237 (quoting
State v. Valenzuela, 136 N.J. 458, 469 (1994)).3
Confronted by the jury’s statement that it had been unable
to reach a unanimous verdict on any count, and responding to its
request for direction in light of that development, the trial
court properly applied the principles articulated by this Court
in Czachor. The jury in this case did not signal an intractable
divide that would warrant a declaration of mistrial. Instead,
it communicated that its effort to reach consensus on the issues
had fallen short. The trial court properly refrained from any
3
To that end, a footnote to the Model Criminal Jury Charge
instructs trial judges, “[w]hen you feel a reasonable period of
time has gone by subsequent to the delivery of your charge, be
aware of N.J.S.A. 2C:1-9d(2).” A sentence added to the footnote
in 2013 informs the trial judge, but not the jury, that
“[m]istrial for a jury unable to reach a verdict will not
prevent retrial.” Model Jury Charge (Criminal), “Judge’s
Instructions on Further Jury Deliberations” (Jan. 14, 2013);
Notice to the Bar, Updates to Model Criminal Jury Charges, 211
N.J.L.J. 319 (Feb. 4, 2013).
15
inquiry that could have compromised the confidentiality of the
jury’s deliberations, and instructed the jury to resume
deliberations in accordance with the approved Czachor charge.
As both parties agree, the trial court properly exercised its
discretion in response to the jury’s communication of an impasse
by providing a Czachor charge and directing the jury to resume
deliberations.
B.
Shortly after the original jury reconvened, a juror’s
illness precluded her from continued participation in this case,
posing a second challenge to the trial court. The trial court’s
decision to substitute an alternate juror for the ill juror gave
rise to the issue at the center of this appeal.
Rule 1:8-2(d)(1) sets forth the procedure for the
substitution of an alternate juror for a juror who “dies or is
discharged by the court because of illness or other inability to
continue.” If the trial court elects to replace an excused
juror, rather than to declare a mistrial, the court directs the
clerk to draw the name of the alternate who will deliberate. R.
1:8-2(d)(1). It “instruct[s] the jury to recommence
deliberations,” and gives any other “supplemental instructions
as may be appropriate.” R. 1:8-2(d)(1). The newly composed
jury then begins its deliberations.
16
Rule 1:8-2(d)(1) “delicately balances two important goals:
judicial economy and the right to a fair jury trial.” State v.
Jenkins, 182 N.J. 112, 124 (2004) (citing State v. Phillips, 322
N.J. Super. 429, 436 (App. Div. 1999)). As this Court has
observed,
[d]eclaring a mistrial imposes enormous
costs on our judicial system, from the
expenditure of precious resources in a
retrial to the continued disruption in the
lives of witnesses and parties seeking
closure. Any court that has presided over
days or weeks of testimony must experience a
sense of futility at the prospect of
aborting a trial in the jury deliberation
stage.
[Id. at 124.]
The juror substitution procedure set forth in Rule 1:8-
2(d)(1) has been held not to “offend our constitutional guaranty
of trial by jury.” State v. Miller, 76 N.J. 392, 406 (1978);
see also State v. Joel Williams, 171 N.J. 151, 162 (2002)
(stating that substitution of juror in course of deliberations
“does not in and of itself offend a defendant’s constitutional
guarantee of a trial by jury”). Such a substitution, however,
contravenes constitutional norms if it impairs the mutuality of
deliberations -- the “joint or collective exchange of views
among individual jurors.” Joel Williams, supra, 171 N.J. at
163; see also State v. Hightower, 146 N.J. 239, 253 (1996). The
trial court is charged with maintaining “an environment that
17
fosters and preserves that exchange until the jury reaches a
final determination.” Joel Williams, supra, 171 N.J. at 163
(citing Corsaro, supra, 107 N.J. at 349). The court must be
prepared to declare a mistrial if a substitution would imperil
the integrity of the jury’s process. Hightower, supra, 146 N.J.
at 253-54. The trial judge’s task is complicated by the need to
diligently protect the confidentiality of jury communications as
he or she inquires about the status of the juror in question.
In short, the trial court must appraise the impact of a juror
substitution on the jury process, without tainting that process
with intrusive questions. It must conduct any inquiry with
respect to the juror in question, or the jury as a whole, with
caution and restraint.
Given the competing interests at stake, this Court has
directed trial courts to focus on two related issues. First,
the trial court must determine the cause of the juror’s concern
and assess the impact of the juror’s departure on the
deliberative process. Second, in light of the timing of the
juror’s dismissal and other relevant considerations, the trial
court must ascertain whether a reconstituted jury will be in a
position to conduct open-minded and fair deliberations.
In evaluating the cause of a juror’s departure, our courts
distinguish between reasons that are personal to the juror,
which may permit a substitution under Rule 1:8-2(d)(1), and
18
issues derived from “the juror’s interaction with the other
jurors or with the case itself,” which may not. Joel Williams,
supra, 171 N.J. at 163 (citing Valenzuela, supra, 136 N.J. at
468). Consistent with the language of Rule 1:8-2(d)(1), and in
the absence of indicia that a reconstituted jury cannot engage
in meaningful deliberations, our courts have consistently upheld
the substitution of an alternate for a juror excused for
personal reasons unrelated to the case. A physical illness is
recognized in the text of Rule 1:8-2(d)(1) to constitute a basis
for removal and replacement of a juror. See R. 1:8-2(d)(1);
Jenkins, supra, 182 N.J. at 130 (observing that “[a] juror
suffering from a purely personal problem, like a physical
illness, could be removed and replaced by an alternate without
fear that the ultimate verdict’s validity has been
compromised”).
This Court has also considered a juror’s psychological
condition as a reason that he or she cannot continue to serve.
The “inability to continue” language of Rule 1:8-2(d)(1) “has
been invoked to remove a juror under circumstances that reveal
the juror’s emotional condition renders him or her unable to
render a fair verdict.” Joel Williams, supra, 171 N.J. at 164
(citing Hightower, supra, 146 N.J. at 255); see also Miller,
supra, 76 N.J. at 406-07 (holding that trial court properly
substituted an alternate for juror who “stated that in his then
19
nervous and emotional condition, he did not think he could
render a fair verdict”); State v. Trent, 157 N.J. Super. 231,
235-36, 240 (App. Div. 1978), rev’d on other grounds, 79 N.J.
251 (1979) (authorizing replacement of juror who cited her
“nervous” and “emotional” condition, manifested in headaches and
nausea, because defendant reminded her of her son). This Court
has also held that the “inability to continue” standard of Rule
1:8-2(d)(1) authorizes the substitution of an alternate for a
juror who seeks to be excused because of the financial hardship
imposed by continued service. Joel Williams, supra, 171 N.J. at
167.
These personal concerns prompting a juror’s departure in
the midst of deliberations -- a physical illness, an emotional
condition or the financial burden of service -- do not originate
in the interactions between the excused juror and the remaining
jurors. Accordingly, they do not preclude the substitution of
an alternate for the excused juror. See R. 1:8-2(d)(1).
In contrast, this Court’s decision in Valenzuela, supra,
involved the dismissal of a juror whose relationships with other
jurors deteriorated in the course of deliberations. 136 N.J. at
462-66. There, the trial court received a note stating that a
juror did not want to continue her service. Id. at 462. The
juror represented that the other jurors were “ganging up” on
her, that they were discounting her opinions, and that they
20
considered her an obstacle to a verdict. Id. at 462-65. This
Court held that because the juror’s inability to complete her
service “related not only to personal circumstances but also to
factors arising from the juror’s interactions with the other
jurors,” her discharge from further service was an abuse of
discretion. Id. at 473.
In addition to determining whether issues personal to the
juror or troubled relationships in the jury room have prompted
the juror’s departure, the trial court should consider whether a
reconstituted jury will be in a position to meaningfully
evaluate and discuss the case. “No bright line rule in respect
of the length of jury deliberations triggers a finding that
deliberations have progressed too far to permit the substitution
of an alternate.” Joel Williams, supra, 171 N.J. at 169.
Instead, the court should consider such factors as the timing of
the juror’s departure, his or her explanation of the problem
prompting the inquiry, and any communications from the jury that
may indicate whether deliberations have progressed to the point
at which a reconstituted and properly charged jury will be
unable to conduct open and mutual deliberations.
This Court has considered these factors in several
settings. In Joel Williams, the Court rejected the Appellate
Division panel’s conclusion that the juror’s departure occurred
at a “critical time,” and that the juror’s comment that he “gave
21
it [his] best shot” implicated the deliberative process, barring
substitution. Id. at 168-69 (alteration in original). There,
the juror’s request to be excused for financial reasons followed
approximately three hours of deliberations. Id. at 159.
Because the jury asked for “a readback of critical
identification testimony” immediately before the juror was
excused, and deliberated for several hours after the
substitution of a new juror before reaching a verdict, the Court
surmised that “[t]he jury could not have reached a determination
of guilt or innocence” in advance of the substitution. Id. at
169. The Court did not consider the deliberations “to have
progressed to such a point that the new juror would not have
[had] a realistic opportunity to share in the deliberative
process.” Id. at 170.
This Court’s opinion in Jenkins, supra, 182 N.J. 112, arose
in a different context. There, a juror claimed to identify with
the defendant because of his race, and “unequivocally
expresse[d] her unwillingness or inability to put aside bias and
passion and follow the law.” Id. at 119, 123. The Court
therefore held that the trial court could have properly excused
the juror due to her bias. Id. at 130. It found, however, that
despite a good faith and earnest effort to address a difficult
situation, the trial court had inadvertently elicited from the
juror information about the positions of other jurors regarding
22
the merits of the case. Id. at 134. Cautioning judges to avoid
such disclosures by warning jurors not to reveal the substance
of a jury’s confidential discussions, the Court held that it was
error for the trial judge to have permitted the reconstituted
jury to deliberate in these circumstances, and remanded for a
new trial. Id. at 134-35, 137.
The Court reached a similar conclusion in Corsaro, supra,
107 N.J. 339. In that case, the jury reached a partial verdict
before the trial court replaced a juror who had briefly vanished
and returned to court, apparently intoxicated. Id. at 341-42.
In the wake of a partial verdict by the original jury, the Court
held that it was plain error to substitute an alternate for a
juror at that late stage:
[W]here the deliberative process has
progressed for such a length of time or to
such a degree that it is strongly inferable
that the jury has made actual fact-findings
or reached determinations of guilt or
innocence, the new juror is likely to be
confronted with closed or closing minds. In
such a situation, it is unlikely that the
new juror will have a fair opportunity to
express his or her views and to persuade
others. Similarly, the new juror may not
have a realistic opportunity to understand
and share completely in the deliberations
that brought the jurors to particular
determinations, and may be forced to accept
findings of fact upon which he or she has
not fully deliberated.
[Id. at 352.]
23
Thus, when the circumstances suggest a strong inference
that the jury has affirmatively reached a determination on one
or more factual or legal issues, the trial court should not
substitute an alternate for an excused juror. See id. at 354.
We derive from these cases several principles to guide a
trial court’s determination as to whether a reconstituted jury
will meaningfully deliberate. First, the trial judge should
conduct any inquiry of the juror seeking to be excused with
caution, and should direct the juror not to reveal confidential
jury communications. See Jenkins, supra, 182 N.J. at 134-35.
Second, the trial court may consider the duration of the jury’s
deliberations prior to the departure of the juror. Without
applying an inflexible rule that would preclude substitution
after a specific amount of time has elapsed, the trial court
should determine whether the jury appears to have progressed to
a stage at which issues have been decided and deliberations
cannot commence anew. See Joel Williams, supra, 171 N.J. at
169-70. Third, if a partial verdict has been rendered, or the
circumstances otherwise suggest that jurors have decided one or
more issues in the case, the trial court should not authorize a
juror substitution, but should declare a mistrial. See Jenkins,
supra, 182 N.J. at 132-33; Corsaro, supra, 107 N.J. at 352-54.
Finally, if the trial court permits the substitution of an
alternate juror for an excused juror, it must instruct the newly
24
composed jury before its deliberations. The trial court should
charge the jury that the excused juror’s departure was prompted
by personal issues, rather than by his or her view of the case
or relationships with other jurors, that the reconstituted jury
should not speculate on the reasons for the juror’s departure,
and that the jury should begin deliberations anew by setting
aside their previous discussions so that the reconstituted jury
may conduct full and complete deliberations. The Model Criminal
Jury Charge, revised following this Court’s decision in Jenkins,
accurately and concisely conveys those instructions. See Model
Jury Charge (Criminal), “Judge’s Instructions When Alternate
Juror Empaneled After Deliberations Have Begun” (Jan. 14, 2013).4
Applying these principles to this case, we hold that the
trial court’s decision to substitute an alternate for the ill
juror after the deadlock had been announced did not constitute
plain error. Nothing in the original jury’s communications with
the trial court suggested that any juror had reached a
4
In Jenkins, supra, the Court did not find error in the trial
court’s instruction to the reconstituted jury which was
“consistent with the Model Criminal Charge.” 182 N.J. at 135.
The Court recommended, however, that the Committee on Model
Criminal Charges amend the charge to be in conformance with a
correspondent instruction in the Model Civil Charge. Id. at
136-37. In 2005, the post-substitution charge to a jury set
forth in the Model Criminal Jury Charges was revised
accordingly, and following a 2013 reorganization of the Model
Charges, is it now set forth in a separate charge. Model Jury
Charge (Criminal), “Judge’s Instructions When Alternate Juror
Empaneled After Deliberations Have Begun” (Jan. 14, 2013).
25
determination on a factual or legal issue. There was no
indication that the jury was unable to engage in open-minded
discussions after the substitution. Indeed, the trial court
charged the jury to conduct fair and mutual deliberations, and
we presume that its instructions were followed. See State v.
Winder, 200 N.J. 231, 256 (2009).
Although the original jury deliberated for a significant
period and requested a readback of evidence prior to the
substitution, it did not announce or imply that it had rendered
a partial verdict or that it had otherwise “reached a
determination of guilt or innocence.” Joel Williams, supra, 171
N.J. at 169. In contrast to the settings of Corsaro and
Jenkins, there was no suggestion in the trial court’s cautious
inquiry of the excused juror that the juror’s inability to
continue derived from her view of the case or her discussions
with her colleagues. There was no evidence that the juror in
question was a holdout juror, that she manifested bias, that she
had confronted hostile or intractable colleagues, or that
disputes had arisen in the jury room. Instead, the
precipitating event was clearly the juror’s illness, which was
sufficiently debilitating to preclude her further service.
Moreover, in the wake of the trial court’s proper
instruction to the jury to begin deliberations anew, the newly
constituted jury undertook protracted deliberations. The jury
26
met for more than sixteen hours over four days. It sought and
received a readback of testimony distinct from that requested by
the original jury. It rendered a verdict only after
deliberating for a period sufficient to permit an open and
thorough discussion of the issues.
In reversing the trial court’s judgment, the Appellate
Division panel relied upon the holding in Banks, supra, 395 N.J.
Super. at 218, another Appellate Division decision. In Banks,
after the jury declared an impasse and the trial court
instructed it pursuant to Czachor to continue deliberating, the
jury asked the trial court how it should address a juror who
“may hold personal bias towards the police or victims due to
prior circumstances.” Id. at 211, 218. After interviewing the
jurors individually, the trial court “concluded that the problem
juror’s inability to function was personal and unrelated to his
interaction with the other members of the jury,” and thus
dismissed the juror. Id. at 214. The defendant then made a
motion for a mistrial, which the trial court denied. Ibid.
The Appellate Division in Banks reversed and remanded for a
new trial. Id. at 220. It confirmed the propriety of the
Czachor charge given by the trial court, but concluded that the
jury’s initial declaration of an impasse itself “indicates that
deliberations have progressed to a point where the individual
jurors have made determinations about the evidence and facts,”
27
thereby compelling a mistrial. Id. at 211, 218. The panel
cited Corsaro and Jenkins as authority for its holding on this
issue. Id. at 218.
The Appellate Division panel in Banks correctly applied
Jenkins, supra, 182 N.J. at 130-31, to hold that the excused
juror’s manifest bias warranted a mistrial. Id. at 216. It
incorrectly concluded, however, that a trial court may never
substitute an alternate for an excused juror after an initial
declaration of a deadlock and a Czachor charge. Id. at 219. In
authorizing continued deliberations following a deadlock and an
instruction, this Court declined to hold in Czachor, supra, that
an initial impasse signals the end of meaningful deliberations.
82 N.J. at 404-06 (directing trial courts, in appropriate
circumstances, to charge deadlocked jury to continue
deliberations). To the contrary, the Czachor charge instructs
jurors to consider the viewpoints of other jurors with an open
mind. See Model Jury Charge (Criminal), “Judge’s Instructions
on Further Jury Deliberations” (Jan. 14, 2013). In short,
Czachor contemplates that a previously deadlocked jury can
conduct fair and effective deliberations notwithstanding an
earlier impasse.5 A juror substitution, necessitated by illness,
5
We respectfully disagree with the view of our dissenting
colleague that because the jury had previously reached an
impasse, its deliberations had proceeded too far to permit the
trial court to substitute an alternate. Post at __ (slip op. at
28
that conforms with Rule 1:8-2(d)(1) does not alter that
conclusion.6
Accordingly, we overrule the Appellate Division panel’s
decision in Banks, supra, to the extent that it generally barred
trial courts from substituting a juror and directing new
deliberations, by virtue of the fact that the original jury had
reached an initial impasse and was charged in accordance with
Czachor. 395 N.J. Super. at 218-20.
We hold that in this case, the trial court properly
responded to the original jury’s statement that it was at an
impasse and to the subsequent illness of one juror. In each
situation, the trial court determined the relevant facts without
2). This Court’s opinion in Czachor, supra, is premised upon
the principle that a properly instructed jury can and will
meaningfully deliberate, notwithstanding a prior declaration of
an impasse. 82 N.J. at 404-06. Following the trial court’s
administration of the Czachor charge and resumption of
deliberations, which our dissenting colleague agrees was an
appropriate measure, there was no indication that the jury was
unable to conduct open-minded and fair deliberations, either
before or after the substitution of an alternate for the ill
juror.
6
The cases upon which the Appellate Division in Banks relied,
Corsaro and Jenkins, involved jury deliberations that had
clearly progressed to the point at which jurors had reached
final determinations on factual and legal issues, thus
precluding meaningful deliberations by a reconstituted jury.
Jenkins, supra, 182 N.J. at 132-33 (pre-substitution jury was
“prepared to convict defendant at the moment of substitution”);
Corsaro, supra, 107 N.J. at 341-42 (pre-substitution jury
reached partial verdict on three of five counts). Neither
Corsaro nor Jenkins stands for the proposition that once an
impasse has been declared and a Czachor charge given, an
alternate can never be substituted for a juror excused for
personal reasons unrelated to the case.
29
compromising the integrity of the jury’s deliberations, and
instructed the jury in accordance with this Court’s decisions.
In challenging circumstances, the court ensured that defendant
received a fair trial. It committed no plain error warranting a
new trial.
IV.
Therefore, the judgment of the Appellate Division is
reversed, and the matter is remanded to the Appellate Division
for consideration of the remaining issues that the panel did not
reach in light of its resolution of the jury substitution issue.
CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA and FERNANDEZ-
VINA; and JUDGE RODRÍGUEZ (temporarily assigned) join in JUSTICE
PATTERSON’s opinion. JUDGE CUFF (temporarily assigned) filed a
separate, dissenting opinion. JUSTICE ALBIN did not
participate.
30
SUPREME COURT OF NEW JERSEY
A-67 September Term 2012
072042
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
MICHAEL ROSS II,
Defendant-Respondent.
JUDGE CUFF (temporarily assigned), dissenting.
The majority holds that the trial judge properly issued a
jury instruction consistent with State v. Czachor, 82 N.J. 392
(1980), when the jury reported it was deadlocked, and properly
substituted an alternate juror following the Czachor instruction
after a deliberating juror fell ill and was unable to continue.
Ante at (slip op. at 2). In doing so, the majority also
overrules State v. Banks, 395 N.J. Super. 205 (App. Div.),
certif. denied, 192 N.J. 598 (2007), “to the extent that it held
that it generally barred trial courts from substituting a juror
and directing new deliberations” following declaration of
impasse and delivery of a Czachor charge. Ante at ___ (slip op.
at 29). I readily join the majority opinion to the extent that
it holds that the trial court properly issued a Czachor charge
when informed by the jury that it had reached an impasse in its
deliberations. I would also join the majority opinion if the
1
ill juror had been substituted before the jury declared an
impasse. I respectfully dissent from the majority holding that
the trial court could discharge the ill, deliberating juror,
substitute an alternate juror, and instruct the jury to continue
its deliberations anew following declaration of impasse and
issuance of a Czachor instruction.
Our Rules provide that a juror may be replaced once a case
has been submitted to the jury only in the event the juror dies
or because of illness or other inability to continue. R. 1:8-
2(d)(1). However, the inquiry does not end there. We must then
ask a second question: whether “the jury’s deliberations ha[ve]
proceeded so far towards completion that a reconstituted jury
would not [be] capable of considering [the] defendant’s guilt or
innocence anew.” State v. Jenkins, 182 N.J. 112, 116 (2004).
If the answer to that inquiry is in the affirmative, a mistrial
must be declared. In my view, the jury had proceeded too far in
this case to permit the trial court to have a reasonable
expectation at the time of substitution that the newly seated
juror could be a full and equal participant in the
deliberations. I, therefore, respectfully dissent and would
affirm the Appellate Division judgment.
I.
After deliberating over the course of five days, the jury
sent a note to the court, stating, “The jury was unable to reach
2
a unanimous verdict on any count. What is your next
instruction?” The court, in agreement with counsel, instructed
the jury to continue deliberating, delivering the standard
charge outlined by this Court in Czachor, supra, 82 N.J. at 405-
07. Following a lunch break and less than two hours of
deliberation, the jury advised the trial court through another
note that a juror had become ill and did not expect to be
present the following morning. The court dismissed the jury for
the remainder of the day and determined that the ill juror, who
complained of a “terrible headache” and “nausea,” would be
replaced with one of the alternates if she was unable to attend
the next day. The following morning, the trial judge telephoned
the juror in counsel’s presence, and the juror confirmed she was
too sick to report. The court asked if either counsel had
additional questions; neither did. The trial court determined
that the ill juror could be replaced, and stated:
[T]here’s nothing to say that this jury has
made any actual fact findings or reached any
determinations of guilt or innocence. And
there’s . . . nothing that would indicate
that a new juror will not play a meaningful
role in deliberations. There’s no partial
verdict, nothing like that. No lengthy
colloquy with any juror.
The trial court noted that after receiving the Czachor charge
the jurors deliberated for “less than two hours,” before sending
the note concerning the juror’s illness. The court further
3
opined, “I believe there’s no problem substituting one of the
alternates.” Neither counsel objected, and the reconstituted
jury deliberated over the course of the following four days
before announcing its verdict.
II.
This Court has stressed that the substitution of
deliberating jurors should be rare and is to be discouraged.
In State v. Hightower, we noted that
any conduct that could upset the process of
jury deliberations, even judicial conduct
such as juror substitution, must be
carefully scrutinized.
Because juror substitution poses a
clear potential for prejudicing the
integrity of the jury’s deliberative
process, it should be invoked only as a last
resort to avoid the deplorable waste of
time, effort, money, and judicial resources
inherent in a mistrial.
[146 N.J. 239, 253-54 (1996).]
In State v. Corsaro, the Court held that a juror should not
have been substituted after the jury returned a partial verdict,
and noted the concern that
if the jury deliberates for an extended
period of time, it will have progressed so
far in its deliberations that it will have
reached determinations. Hence, at that
juncture, the substituted juror will not
have “had the benefit of the deliberations
of the other 11,” and may indeed be
pressured by the amount of time the jury has
deliberated and by the extent of their
4
progress to conform to their findings and
verdict.
[107 N.J. 339, 351 (1987) (internal
citations omitted).]
In Corsaro, the Court quoted at length the Supreme Court of
California in People v. Collins, 552 P.2d 742, 746 (Cal. 1976),
cert. denied, 429 U.S. 1077, 97 S. Ct. 820, 50 L. Ed. 2d 796
(1977), which highlighted the threat to the delicate balance of
deliberations posed by juror substitution:
“The requirement that 12 person[s] reach a
unanimous verdict is not met unless those 12
reach their consensus through deliberations
which are the common experience of all of
them. It is not enough that 12 jurors reach
a unanimous verdict if 1 juror has not had
the benefit of the deliberations of the
other 11.”
[Corsaro, supra, 107 N.J. at 349-50 (quoting
Collins, supra, 552 P.2d at 746).]
Similarly, in Jenkins, supra, the Court reiterated that
principles of judicial economy embodied in Rule 1:8-2(d)(1)
sometimes must yield to the simple fact that deliberations had
proceeded too long to expect that a reconstituted jury could
commence its deliberations anew. 182 N.J. at 131-32.
III.
The issue of whether a reconstituted jury is capable of
functioning in the mutual and collective manner required for a
fair trial involves numerous issues of juror dynamics. There
should be a legitimate concern that a newly introduced juror may
5
not be able to fully participate, or participate in a fully
informed manner, in the renewed deliberations. A new juror may
feel pressure to conform to the views of jurors who have been
considering the evidence for many hours or days. The original
members of the jury may not be capable of starting their
deliberations anew. Indeed, Justice Handler’s remarks in
Czachor about the inherently coercive effect of that instruction
apply with equal force here. He stated, “[t]here is rather
equal cause to believe that a mind once bent in a particular
direction is not easily straightened.” Czachor, supra, 82 N.J.
at 401. These concerns implicate the fairness of the
deliberative process. When the substitution follows a
declaration of impasse, the introduction of a new member occurs
at a time in the deliberations when the very declaration of an
impasse communicates that at least one member of the jury is at
odds with the others. Such a circumstance adds to the concern
that the integrity and even-handedness of the deliberative
process will be compromised.
Judicial economy is a commendable goal. A trial court
should never blithely declare a mistrial. Judicial economy
concerns mount as the testimony consumes hours, days, or even
weeks before the jury can commence its deliberations. Those
concerns only increase as jury deliberations proceed over many
hours and days. Those concerns, however, can never be the sole
6
driver of the decision whether a juror may be substituted for
another after the jury has declared it is deadlocked and the
trial court has delivered an appropriate charge to continue
deliberations.
Whether a reconstituted jury is able to begin its
deliberations anew should be guided by objective principles.
Here, the majority salvages this conviction by focusing on
information gleaned from the record about what occurred before
the jury resumed its deliberations and during the course of its
deliberations. It also finds solace in the amount of time the
reconstituted jury spent on its deliberations. To be sure, the
record here strongly suggests that the reconstituted jury began
its deliberations anew. The record also demonstrates that the
renewed deliberations progressed over several days and the jury
requested read-back of testimony different from the originally
constituted jury. For me, however, the correct inquiry is not
whether the reconstituted jury conscientiously discharged its
duty to begin anew, but rather whether it was capable of doing
so.
By focusing on the result, the majority fails to offer
practical guidance for trial judges, prosecutors, and defense
attorneys. Reliance on extrinsic evidence, such as post-
substitution acts of the jury and the supposed course of
deliberations, provides no guidance how trial courts and counsel
7
should confront a similar issue in another case. Such reliance
also ventures into the deliberative process, a foray this Court
has always condemned. Jenkins, supra, 182 N.J. at 134; Czachor,
supra, 82 N.J. at 400. Furthermore, the actions a reconstituted
jury will take, such as asking for new pads, taking posters off
the wall in the jury room, or the length of time the newly
constituted jury will deliberate, whether thirteen hours over
four days, as here, or as little as one hour, as in Banks, are
unknowable at the time the decision must be made. Adding to the
uncertainty, this Court has reversed convictions when the newly
constituted jury deliberates for a matter of minutes. Jenkins,
supra, 182 N.J. at 116.
The majority insists that they are simply following the
established approach that avoids adopting bright-line rules.
Ante at ___ (slip op. at 21). However, case law demonstrates
that bright-line rules do, in fact, exist. In Corsaro, supra,
this Court determined that a juror should not be substituted
after a jury returns a partial verdict, because the
circumstances suggested that the jury had affirmatively reached
a determination on one or more factual issues. 107 N.J. at 354.
In Jenkins and Hightower, this Court held that the jury should
not be reconstituted when the substituted juror expressed a bias
and may have tainted the panel. Jenkins, supra, 182 N.J. at
134-35; Hightower, supra, 146 N.J. at 255-56. Finally, in State
8
v. Valenzuela, 136 N.J. 458, 473 (1974), this Court declared
that a juror may not be excused and an alternate empanelled
because a juror expresses disagreement with the views of the
other jurors.
IV.
In this case, when the jury passed a note stating, “The
jury was unable to reach a unanimous verdict on any count. What
is your next instruction?” it is clear that a determination had
occurred. We can assume in this circumstance that at least one
juror could not agree with the views of the other jurors. A
declaration of deadlock after four days also raises the spectre
that some jurors may not be able to begin their deliberations
anew. The risk that the deliberative process will be
compromised is only heightened when the juror substitution
occurs after delivery of the Czachor instruction. I, therefore,
respectfully dissent and would affirm the Appellate Division.
9
SUPREME COURT OF NEW JERSEY
NO. A-67 SEPTEMBER TERM 2012
ON CERTIFICATION TO Appellate Division, Superior Court
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
MICHAEL ROSS, II,
Defendant-Respondent.
DECIDED June 24, 2014 – Corrected July 3, 2014
Chief Justice Rabner PRESIDING
OPINION BY Justice Patterson
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY Judge Cuff
REVERSE AND
CHECKLIST AFFIRM
REMAND
CHIEF JUSTICE RABNER X
JUSTICE LaVECCHIA X
JUSTICE ALBIN -------------------- --------------------
JUSTICE PATTERSON X
JUSTICE FERNANDEZ-VINA X
JUDGE RODRÍGUEZ (t/a) X
JUDGE CUFF (t/a) X
TOTALS 5 1
1