State v. Shaffona Morgan (069967)

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. Shaffona Morgan (A-119-11) (069967)
Argued March 11, 2013 -- Decided August 8, 2013
RABNER, C.J., writing for a unanimous Court.
The issues in this appeal are (1) whether the trial court erred by having ex parte communications with the
jury during deliberations and permitting the jurors to take home written jury instructions and, (2) if the trial court
erred, whether defendant was prejudiced by any errors.
Defendant Shaffona Morgan was a regular customer at the Pollo Deli in Trenton. Juan Carlos Martinez, the
victim, owned the deli, and his father, Juan Batista Martinez, operated it. Miguel Moran, Juan Batista’s nephew,
worked in the kitchen. On November 24, 2005, defendant, Juan Carlos, and Juan Batista had an altercation over a
Boost Mobile calling card purchased by defendant at the deli. When she was refused a refund, defendant took five
DVDs from the counter and told Juan Batista that she was keeping them if she did not get her money back. At trial,
Juan Carlos, Juan Batista, and Moran testified that when Juan Carlos tried to stop defendant, she pulled out a
handgun and shot Juan Carlos in the back as he tried to push his father out of the way. According to defendant, Juan
Batista pulled out a gun from behind the counter and pointed it at her, at which time defendant put the DVDs back
and ran out of the store. Defendant claimed that outside the store Juan Batista jabbed her with the gun and, with his
finger on the trigger, “[a] shot went off.”
Defendant was indicted on charges of first-degree attempted murder, first-degree robbery, second-degree
aggravated assault against Juan Carlos, fourth-degree aggravated assault against Juan Carlos and Juan Batista, and
second-degree possession of a handgun for an unlawful purpose. The trial began on February 19, 2008. The court
instructed the jury on February 27, and the jury began deliberating that afternoon. The following day, the jury sent a
note with three questions. In response to one of the questions, the judge advised the jury that she was “preparing
written instructions on robbery, theft, and attempt….” That afternoon, the trial judge entered the jury room without
counsel. In an ex parte discussion, the foreperson asked if the jury could take the written instructions home for the
weekend. The judge granted the request with the caveat: “Do not do any research, read anything, hear anything,
discuss it at all until all of you are back Monday morning at 9:00.” The jury returned that Monday, March 3, and
continued deliberating. Late in the day, the trial judge had a second ex parte discussion in the jury room. The judge
told the jury to be back at 9 a.m. the next day and that there would be a readback at 9:15. The judge further
explained that another judge would be presiding over the morning proceedings, but that she would be back in the
afternoon.
The jury delivered its verdict the next day. It acquitted defendant of attempted murder and convicted her of
second-degree aggravated assault against Juan Carlos, fourth-degree aggravated assault against Juan Carlos, and
possession of a handgun for an unlawful purpose. The jury could not reach a unanimous verdict on robbery or
aggravated assault against Juan Batista. The trial judge sentenced defendant and dismissed the two counts on which
the jury deadlocked.
On direct appeal, defendant challenged the two ex parte communications and argued that it was error for
the jurors to take home written instructions. The appellate panel strongly disapproved of the trial judge’s ex parte
communications but determined that the communications were not prejudicial to defendant. In addition, the panel
did “not discern a per se impediment to permitting the jury to take all or parts of the [jury instructions] outside the
jury room.” State v. Morgan, 423 N.J. Super. 453, 473 (App. Div. 2011). The panel declined to reverse defendant’s
conviction for a number of reasons: it found “no evidence… that anything untoward actually happened”; the trial
judge gave specific cautionary instructions; and, after receiving the charge on attempt, robbery, and theft, the jury
acquitted defendant of attempted murder and reached no verdict on the robbery count.” Id. at 472-73.
The Supreme Court granted defendant’s petition for certification limited to the following issues: “whether
the trial court erred[] by engaging in ex parte communication with the deliberating jury” and “in permitting the
jurors to take written jury instructions home with them to review over the weekend.” 210 N.J. 477 (2012).
HELD: Both ex parte communications between the trial judge and jury were improper and the trial court erred in
permitting the jurors to take written instructions home for the weekend. Despite those errors, the record
affirmatively shows that the contacts and the decision to permit the jury to take home written instructions did not
prejudice defendant and had no tendency to influence the verdict.
1. Ex parte communications between a trial judge and a jury are improper and must be avoided. Any proceedings
that take place during jury deliberations, such as readbacks, should be on the record, in open court, with counsel and
the accused present. There are no exceptions. However, a “judge’s improper entry into the jury room does not
automatically require” reversal of a conviction. State v. Brown, 275 N.J. Super. 329, 332 (App. Div. 1994). There
are three ways to evaluate a judge’s inappropriate communication 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 affirmatively discloses “that the communication had no
tendency to influence the verdict,” the outcome should not be disturbed. State v. Auld, 2 N.J. 426, 432 (1949). An
adequate record of the contact may be able to dispel a presumption of prejudice. To be clear, though, the Court does
not in any way endorse ex parte communications between a trial judge and a jury. (pp. 11-14)
2. The court rules are clear about whether jurors may take written jury instructions home. They may not. Jurors
may only review written instructions in the jury room. R. 1:8-8(a). It is important to insulate the jury from
influences that could undermine its deliberations. Allowing jurors to take home written instructions increases the
risk that jurors will conduct independent research about the law or the facts of the case on the Internet, or in some
other manner. In addition, jurors with written instructions in hand might be more inclined to discuss the trial with
family members and friends. It is also essential that jurors deliberate as a collective group and reach a verdict
through the exchange of views among all members of the jury. (pp. 14-18)
3. Both ex parte communications with the jury were plainly improper. That said, the March 3, 2008 communication
related only to ministerial scheduling matters, and the record therefore affirmatively shows that the communication
had no tendency to influence the verdict. The ex parte communication on February 28, 2008 was not only improper,
but it was also error for the court to allow the jury to take home copies of the charge. The record discloses that the
ex parte communication was recorded and transcribed and that the court warned the jurors not to discuss the case
with others, not to do their own research, and to avoid outside sources of information. The record contains no
evidence that the jury behaved in an “untoward” manner or that any outside influences infected the verdict. In
addition, the jury acquitted defendant of attempted murder and reached no verdict on the robbery count. The Court
therefore finds that the second ex parte conversation also had no tendency to influence the verdict. The record
affirmatively overcomes any presumption of prejudice that might otherwise exist. For that reason, the Court does
not reverse defendant’s conviction. (pp. 18-22)
The judgment of the Appellate Division is AFFIRMED.
JUSTICES LaVECCHIA, ALBIN, HOENS, and PATTERSON and JUDGES RODRÍGUEZ and
CUFF (both temporarily assigned) join in CHIEF JUSTICE RABNER’s opinion.
2
SUPREME COURT OF NEW JERSEY
A-119 September Term 2011
069967
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
SHAFFONA MORGAN,
Defendant-Appellant.
Argued March 11, 2013 – Decided August 8, 2013
On certification to the Superior Court,
Appellate Division, whose opinion is
reported at 423 N.J. Super. 453 (2011).
Stefan Van Jura, Assistant Deputy Public
Defender, argued the cause for appellant
(Joseph E. Krakora, Public Defender,
attorney; Mr. Van Jura and Daniel J. Brown,
Designated Counsel, on the briefs).
Daniel A. Matos, Assistant Prosecutor,
argued the cause for respondent (Joseph L.
Bocchini, Jr., Mercer County Prosecutor,
attorney; Mr. Matos and Dorothy A. Hersh,
Assistant Prosecutor, on the letter briefs).
Michael Noriega argued the cause for amicus
curiae American Civil Liberties Union of New
Jersey Foundation (Edward L. Barocas,
Director, attorney; Mr. Noriega and
Alexander R. Shalom, on the brief).
CHIEF JUSTICE RABNER delivered the opinion of the Court.
In this case, a trial judge had two ex parte discussions
with a jury, while it was deliberating, and allowed the jurors
to take home written copies of part of the jury instructions.
Settled case law makes clear that ex parte communications with a
jury are improper and must always be avoided. In addition, when
a judge gives written instructions to a jury, the relevant court
rule requires that the instructions be available for review in
the jury room and nowhere else.
Both ex parte communications were recorded and transcribed.
Despite the errors in this case, the record affirmatively shows
that the contacts and the decision to permit the jury to take
home written instructions in this case did not prejudice
defendant and had no tendency to influence the verdict. We
therefore affirm the judgment of the Appellate Division, which
affirmed defendant’s convictions.
I.
We draw the following facts from the testimony at trial.
Defendant Shaffona Morgan was a regular customer at the Pollo
Deli, a small deli and grocery store in Trenton. Juan Carlos
Martinez, the victim, officially owned the deli, and his father,
Juan Batista1 Martinez, operated it. (To avoid confusion, we
refer to them by their first and middle names.) Miguel Moran, a
nephew of Juan Batista, worked in the kitchen.
1
The record contains different spellings for the father’s middle
name. We use the version in the indictment.
2
On November 24, 2005, defendant bought a Boost Mobile
calling card at the deli for twenty dollars. About thirty
minutes later, she returned to the store to complain that the
card had already been used. Defendant asked for a replacement
card and then a refund. When Juan Batista refused, defendant
grabbed five DVDs from a counter and told him that she was going
to keep them if she did not get her money back.
The witnesses’ accounts differed about what happened next,
and the jury was required to make a credibility call. Juan
Carlos, Juan Batista, and Moran testified as follows. Defendant
tried to leave the store with the DVDs. When Juan Carlos
stopped her in front of the store, his father grabbed the DVDs
out of her hand. Defendant then pulled out a handgun. As Juan
Carlos tried to push his father out of the way, defendant shot
Juan Carlos in the back. She then pointed the gun at Juan
Batista and fled.
According to defendant, after she took the DVDs and tucked
them under her jacket, Juan Batista pulled out a gun from behind
the counter and pointed it at her. She then returned the DVDs
to the counter and ran out of the store. Juan Carlos grabbed
her just outside the store and searched her pockets. Meanwhile,
Juan Batista followed them outside and pointed the gun at her
again. Right after Juan Carlos started to walk back to the
store, Juan Batista began to jab her with the gun. Defendant
3
tried to push it away. According to her testimony, Juan
Batista’s finger was on the trigger, and “[a] shot went off.”
Defendant then fled.
A Mercer County grand jury charged defendant in an
indictment with first-degree attempted murder, N.J.S.A. 2C:11-3
and 2C:5-1; first-degree robbery, N.J.S.A. 2C:15-1; second-
degree aggravated assault against Juan Carlos, N.J.S.A. 2C:12-
1b(1); fourth-degree aggravated assault against Juan Carlos,
N.J.S.A. 2C:12-1b(4); fourth-degree aggravated assault against
Juan Batista, N.J.S.A. 2C:12-1b(4); and second-degree possession
of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4a.
The trial began on February 19, 2008. After four days of
testimony, the trial court instructed the jury on February 27,
2008. The jury began deliberating that afternoon and returned
the following morning. Later in the day on February 28, the
jury sent a note with three questions. Only the second question
is relevant to this appeal: the jury’s request “for the law to
be explained . . . regarding Count 2” (robbery). In a brief
discussion with counsel, the judge said, “I am preparing written
instructions on robbery, theft, and attempt, and so they should
be ready shortly . . . .” Neither the State nor defense counsel
objected.
4
At 2:40 p.m., the trial judge responded to all three
questions in open court with counsel present. As to the second
item, the judge told the jury,
[y]ou’ve asked for the law to be explained
to you regarding Count 2, robbery. I’m
having copies prepared and edited actually
as we speak so that I will send written
copies of robbery, attempt, and theft to you
because you’ll recall that an element of
robbery is that it occurred during the use
of force, occurred during the course of a
theft, and that is defined as to include not
only a theft, but an attempted theft. So I
am including the definition of theft and
attempt as elements of robbery.
The jury resumed its deliberations at 2:54 p.m.
An hour later, for reasons that are not clear from the
record, the trial judge entered the jury room without counsel.
At that time, the following ex parte discussion took place:
THE FOREPERSON: Hello, Judge. Thank you
for coming this afternoon.
Would it be possible for us to take the
explanations of attempt and robbery and
theft home with us this weekend to read, or
is that something that must remain in the
room?
THE COURT: No jury has ever asked to do
that.
THE FOREPERSON: We want homework. We’re a
studious group.
THE COURT: You know what, let me just check
with the attorneys. Did somebody --
SERGEANT-AT-ARMS: I think Bell said she was
going to call.
5
THE COURT: I don’t see any problem with it.
I don’t want you to take the verdict sheets
home, but if you wish to take those home --
but you can’t look up any words in the
dictionary or anything like that. You’re
limited to the four corners of those.
JUROR: It’s kind of rough here. It’s a lot
to read at 4:00 in the afternoon.
THE COURT: You may, but bring them back,
and as I said, don’t look for definitions of
any terms. If any need further definition,
then you can ask me that.
I told you during February we would
have off on Fridays and my calendar tomorrow
is not pretty. So I would prefer that you
come back on Monday unless you’re opposed to
that.
THE JURY: That’s perfect.
THE COURT: Because I will have a courtroom
full of people, and the movement just takes
a while. So Monday, I think would be much
more under control. So enjoy the weekend.
Do not do any research, read anything, hear
anything, discuss it at all until all of you
are back Monday morning at 9:00. Okay.
The jury returned on March 3, 2008 and continued
deliberating. Late in the day, the trial judge had a second ex
parte discussion in the jury room:
THE COURT: We won’t be able to get that
readback done by 4:15 since that’s when you
would like to be excused. I’ll excuse you
for the day and we’ll have it ready for you
tomorrow morning. So why don’t you come
tomorrow at 9:15 just so the court reporter
can get set up. She’s essentially reading
back notes taken by another reporter.
6
A JUROR: Are you saying we can go in the
courtroom at 9:15? If we wanted to review
we can come at 9?
THE COURT: That’s fine. Would you like the
readback even later than 9:15?
A JUROR: 10, 15 minutes before.
THE COURT: Then come at 9 and the readback
will begin at 9:15. I’m going to have
another judge covering [for me] in the
morning and expect to be back in the
afternoon, but I’ll be having a root canal
so don’t think I’m doing anything that’s
fun, but I can’t put it off. I’ll be
talking a little funny, but those things
happen. So there will be another judge and
I’ll bring him or her up to date on what’s
happening.
A JUROR: Back what time?
THE COURT: 9 o’clock --
A JUROR: But you’ll be back --
THE COURT: By the afternoon, I hope. Okay?
Have a pleasant evening and, again, please
don’t discuss the testimony. Wait until all
12 of you are back tomorrow before you begin
discussions again and avoid any outside
information including newspaper articles.
Thank you, and have a pleasant evening.
The jury delivered its verdict the next day. It acquitted
defendant of attempted murder and convicted her of second-degree
aggravated assault against Juan Carlos, fourth-degree aggravated
assault against Juan Carlos, and possession of a handgun for an
unlawful purpose. The jury could not reach a unanimous verdict
on robbery or aggravated assault against Juan Batista.
7
The trial judge sentenced defendant to six and one-half
years in prison, with an eighty-five percent period of parole
ineligibility under the No Early Release Act, N.J.S.A. 2C:43-
7.2. The court also granted the State’s motion to dismiss the
two counts on which the jury deadlocked.
Defendant raised nine claims on direct appeal. See State
v. Morgan, 423 N.J. Super. 453, 464–65 (App. Div. 2011). The
Appellate Division rejected each argument and affirmed the
convictions. We address two points that relate to defendant’s
appeal before this Court: her challenge to the two ex parte
communications between the trial court and the jury, and her
argument that it was error to allow the jurors to take home
written jury instructions. Id. at 465.
The appellate panel disapproved of the trial judge’s ex
parte communications with the jury “in the strongest possible
terms.” Id. at 467 (citation and internal quotation marks
omitted). It then considered whether the communications were
prejudicial. Ibid. As to the discussion on March 3, the panel
noted that the contact “addressed only innocuous scheduling
issues” and could not “have caused the jury to reach a result it
otherwise may not have reached.” Id. at 468.
The panel next considered the discussion on February 28,
when the trial court allowed the jury to take home written jury
instructions. The panel observed that a “strict reading” of the
8
relevant court rule, R. 1:8-8, “leans in favor of [a] lack of
authority because the Rule only permits the jury to take the
court’s written instructions into the jury room, not home with
them over a weekend.” Id. at 471. Nonetheless, the panel did
“not discern a per se impediment to permitting the jury to take
all or parts of the charge outside the jury room.” Id. at 473.
The Appellate Division cautioned against that practice, though,
because it “leaves the deliberative process needlessly
vulnerable to a variety of potential problems.” Ibid.The panel declined to reverse defendant’s conviction for a
number of reasons: it found “no evidence . . . that anything
untoward actually happened”; the trial judge gave specific
cautionary instructions; and, after receiving the charge on
attempt, robbery, and theft, the jury acquitted defendant of
attempted murder and reached no verdict on the robbery count.
Id. at 472-73.
We granted certification limited to the following issues:
“whether the trial court erred[] by engaging in ex parte
communication with the deliberating jury” and “in permitting the
jurors to take written jury instructions home with them to
review over the weekend.” 210 N.J. 477 (2012). We also granted
leave to appear as amicus curiae to the American Civil Liberties
Union of New Jersey (ACLU).
9
II.
Defendant argues that deliberating juries are not allowed
to bring home written jury instructions under Rule 1:8-8. For
support, she cites the language of the Rule at the time of
trial: “The court, in its discretion, may submit a copy of all
or part of its instructions to the jury for its consideration in
the jury room.” R. 1:8-8(a) (effective Sept. 1, 2006).
Defendant asks this Court to establish a per se rule that would
bar jurors from taking home jury instructions in light of the
dangers that practice presents.
Defendant also asserts that her convictions should be
reversed because she was prejudiced by the trial court’s
improper ex parte communication with the jury. She claims that
because defense counsel was unaware of the conversation,
defendant had no opportunity to object to the written
instructions going home for the weekend, or to ask the court to
conduct a voir dire of the jurors to ensure that no outside
sources influenced their verdict.
The State claims that allowing a jury to take home written
jury instructions does not violate any rule or case law and that
trial judges have discretion to follow that course. In
addition, the State notes that the trial court admonished the
jury not to look at any outside sources.
10
The State also argues that the ex parte communications
between the trial judge and the jury did not prejudice
defendant. The discussions were recorded, and the State
contends that they did not address anything substantive. In
addition, the State points to the verdict –- an acquittal on
attempted murder and a hung jury on the robbery charge –- and
argues that “the arrangement ultimately worked to defendant’s
benefit.” As a result, the State contends that defendant’s
convictions should not be overturned.
The ACLU urges this Court to find that there is no basis to
allow jurors to ever take home any portion of criminal jury
instructions. According to the ACLU, this practice “threatens
the deliberative process by exposing it to outside influences.”
The ACLU also submits that the practice subverts the jury’s
collective deliberative process by encouraging individual
deliberation.
In addition, the ACLU challenges the judge’s discussion of
contested issues with the jury outside of counsel’s presence.
The ACLU concludes that, because in this case the court
discussed an important issue as to which counsel’s input was
critical, prejudice must be presumed and the verdict overturned.
III.
Ex parte communications between a trial judge and a jury
are improper and must be avoided. There is no place for them in
11
the trial process. The court rules make clear that “[a]ll
trials . . . shall be conducted in open court unless otherwise
provided by rule or statute.” R. 1:2-1. That approach extends
to jury deliberations in the following way: although juries of
course deliberate in private, see generally State v. Neulander,
173 N.J. 193, 210-14 (2002), cert. denied, 537 U.S. 1192, 123 S.
Ct. 1281, 154 L. Ed. 2d 1027 (2003), any proceedings that take
place during deliberations, such as readbacks, should be on the
record, in open court, with counsel and the accused present,
State v. Basit, 378 N.J. Super. 125, 131 (App. Div. 2005); see
also State v. Brown, 275 N.J. Super. 329, 331–32 (App. Div.),
certif. denied, 138 N.J. 269 (1994).
Trial courts have the responsibility “to protect jurors and
their deliberations from outside influences that threaten to
taint the verdict.” State v. Hightower, 146 N.J. 239, 263
(1996). At the same time, judges must be especially careful
about their own contacts with the jury and should not interact
with jurors outside the presence of counsel. See Basit, supra,378 N.J. Super. at 131 (“[A] judge must scrupulously avoid
engaging in his own ex parte and unrecorded communications with
the jury.”); Brown, supra, 275 N.J. Super. at 332 (“A judge
should avoid engaging in any ex parte communications with the
jury regarding its deliberations.”); Guzzi v. Jersey Cent. Power
& Light Co., 36 N.J. Super. 255, 264 (App. Div.) (citing
12
Leonard’s of Plainfield, Inc. v. Dybas, 130 N.J.L. 135 (Sup. Ct.
1943)) (noting such contacts are forbidden), certif. denied, 19
N.J. 339 (1955). There are no exceptions. In fact, because the
dangers associated with ex parte contacts “are so great,” judges
should not ask counsel to consent to such interactions “under
any circumstances.” Brown, supra, 275 N.J. Super. at 332.
The United States Supreme Court has outlined some of the
dangers inherent in ex parte communications:
Any ex parte meeting or communication
between the judge and the foreman of a
deliberating jury is pregnant with
possibilities for error. . . . [E]ven an
experienced trial judge cannot be certain to
avoid all the pitfalls inherent in such an
enterprise. . . . [I]t is difficult to
contain, much less to anticipate, the
direction the conversation will take at such
a meeting. Unexpected questions or comments
can generate unintended and misleading
impressions of the judge’s subjective
personal views which have no place in his
instruction to the jury -- all the more so
when counsel are not present to challenge
the statements.
[United States v. U.S. Gypsum Co., 438 U.S.
422, 460, 98 S. Ct. 2864, 2885, 57 L. Ed. 2d
854, 884 (1978).]
A “judge’s improper entry into the jury room does not
automatically require” reversal of a conviction. Brown, supra,275 N.J. Super. at 332. In one of this Court’s earliest
decisions, it outlined three ways to evaluate a judge’s
inappropriate communications with a jury: (1) if the record
13
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 affirmatively discloses “that the
communication had no tendency to influence the verdict,” the
outcome should not be disturbed. State v. Auld, 2 N.J. 426, 432
(1949).
In other words, an adequate record of the contact may be
able to dispel a presumption of prejudice. Compare Brown,
supra, 275 N.J. Super. at 331 (finding judge’s ex parte contacts
with jury “had no capacity to prejudice defendant” when purpose
of contact was to clarify meaning of jury question and, after
judge emerged from jury room, he summarized communication in
open court in front of jury, counsel, and defendant), with
Basit, supra, 378 N.J. Super. at 135-36 (finding record did not
overcome presumption of prejudice when trial judge’s ex parte
comments to jury “not only went unrecorded when given but were
never memorialized in later proceedings”). To be clear, though,
we do not in any way endorse ex parte communications between a
trial judge and a jury.
IV.
The court rules are similarly clear about whether jurors
may take written jury instructions home. They may not. Jurors
may only review written instructions in the jury room. At the
14
time of trial, Rule 1:8-8(a) provided, in relevant part, that
“[t]he court, in its discretion, may submit a copy of all or
part of its instructions to the jury for its consideration in
the jury room.” (Emphasis added). The appellate panel
correctly noted that a strict reading of the Rule suggests that
there is no authority to permit jurors to take written jury
instructions outside the jury room. See Morgan, supra, 423 N.J.
Super. at 471.
This Court addressed Rule 1:8-8 in State v. O’Brien, 200
N.J. 520 (2009). In O’Brien, a jury asked for a written copy of
the judge’s instructions at the close of trial. Id. at 533.
The trial judge declined and offered general reasons why he did
not favor the practice. Ibid. On appeal, this Court concluded
that “a judge should make an individualized decision regarding
the submission of written instructions to the jury on the basis
of what is before him and not on any preconceived policy
rationale.” Id. at 541. To consider “a more detailed standard
to guide judges in exercising their discretion” in this area,
the Court referred the matter to the Civil and Criminal Practice
Committees. Ibid.The Criminal Practice Committee released its
recommendations in a report dated March 28, 2012. See Report of
the Supreme Court Criminal Practice Committee on Distribution of
Written Instructions to the Jury (Mar. 28, 2012) (Committee
15
Report). Among other proposals, the Committee recommended that
Rule 1:8-8 be revised to require that “written jury charges . .
. be provided to the jury in all criminal cases, unless doing so
would result in undue delay.” Id. at 21. The Committee also
recommended that the entire charge, not part of it, be given to
the jury. Id. at 27. In addition, the Committee addressed the
Appellate Division decision in this case and recommended that
“jury instructions should not be taken home.” Id. at 28. The
Committee suggested a minor change in language to highlight that
point. Id. app. at 2.
We revised the Rule but retained the same language about
where juries may review written instructions. The Rule repeats
the earlier admonition: “The court, in its discretion, may
submit a copy of its instructions to the jury for its
consideration in the jury room.” R. 1:8-8(a) (effective Sept.
4, 2012).2 In light of the explicit language in the earlier
version of the Rule, it was not necessary to add that jurors may
not take jury instructions outside the jury room during
deliberations. To the extent there is any uncertainty on this
issue, we emphasize that copies of written jury instructions are
for use in the jury room -- and only in the jury room.
2
Other aspects of Rule 1:8-8 were also changed at the same
time. See R. 1:8-8 (effective Sept. 4, 2012). None of the
additional changes relates to the issues in this case.
16
Compelling reasons support that approach. As noted
earlier, it is important to insulate the jury from influences
that could undermine its deliberations. State v. Corsaro, 107
N.J. 339, 346 (1987). As the appellate panel and other courts
have highlighted, allowing jurors to take home written
instructions increases the risk that jurors will conduct
independent research about the law or the facts of the case on
the Internet or in some other manner. Morgan, supra, 423 N.J.
Super. at 473; see also United States v. Esso, 684 F.3d 347, 351
(2d Cir.) (cautioning against jurors taking home indictment or
other trial materials), cert. denied, 568 U.S. , 133 S. Ct.
562, 184 L. Ed. 2d 365 (2012). In addition, jurors with written
instructions in hand might be more inclined to discuss the trial
with family members or friends. Esso, supra, 684 F.3d at 351;
Morgan, supra, 423 N.J. Super. at 473.
It is also essential that jurors deliberate as a collective
group and reach a verdict through the exchange of views among
all members of the jury. “[T]he essence of jury deliberations
is the joint or collective exchange of views among individual
jurors.” Corsaro, supra, 107 N.J. at 349; accord United States
v. Resko, 3 F.3d 684, 689 (3d Cir. 1993). Interactions that
take place when a single juror tries to persuade others are
critical to that process. State v. Trent, 79 N.J. 251, 256
(1979) (quoting People v. Collins, 552 P.2d 742, 746 (Cal.
17
1976)). If some jurors pore over the jury charge at home, and
form ideas about the case on their own as a result, the balance
of the group deliberative process may be upset. See Morgan,
supra, 423 N.J. Super. at 473.
Of course, we recognize that jurors may think about a trial
when they leave the courthouse, and those with better memories
might recall and consider an instruction outside of the jury
room. See People v. Ledesma, 140 P.3d 657, 722 (Cal. 2006); see
also Esso, supra, 684 F.3d at 351. That unavoidable reality,
though, does not weigh in favor of giving jurors written
instructions to take home.
V.
We now apply the above principles to the facts of this
case. Both ex parte discussions with the jury were plainly
improper, and like the Appellate Division, we caution judges to
avoid them at all costs. In light of the errors, we examine the
record for prejudice.
The ex parte communication on March 3, 2008 raises a minor
issue, and we dispense with it first. The brief exchange was
recorded, and the transcript reveals that the discussion related
only to ministerial scheduling matters. The record therefore
affirmatively shows that the communication had no tendency to
influence the verdict. See Auld, supra, 2 N.J. at 432.
18
The ex parte communication on February 28, 2008 raises two
concerns. Not only was the contact itself improper, but it was
also error for the court to allow the jury to take home copies
of the charge. Moreover, because the court handled the jury’s
request outside the presence of counsel, defendant had no
opportunity to object.
We can infer from the record that both counsel were
familiar with the materials sent home. Earlier in the
afternoon, the jury asked “for the law to be explained . . .
regarding Count 2” -- the robbery charge. In response, the
trial judge discussed the jury’s note first with counsel and
then with the jury and counsel in open court. The judge told
the jurors that she would send them written copies of the
robbery, attempt, and theft instructions, and neither counsel
voiced an objection or asked to see the document.
An hour later, the judge granted the jury’s request to take
the charges home. That ex parte discussion was recorded and
transcribed as well. The record discloses that the court also
cautioned the jurors “not to look up any words in the dictionary
or anything like that,” not to “look for definitions of any
terms,” and not to “do any research, read anything, hear
anything, [or] discuss [the case] at all” until deliberations
resumed. The judge specifically “limited” the jury “to the four
corners of” the charge. At various times throughout the trial,
19
the court gave similar warnings and directed the jurors not to
discuss the case with others, not to do their own research, and
to avoid outside sources of information. We presume that the
jurors followed those instructions. State v. Burns, 192 N.J.
312, 335 (2007) (citation omitted). In addition, we agree with
the Appellate Division that the record contains no evidence that
the jury behaved in an “untoward” manner or that any outside
influences infected the verdict. See Morgan, supra, 423 N.J.
Super. at 473.
We also consider what the jury’s verdict reveals about any
prejudice. The jury acquitted defendant of attempted murder and
reached no verdict on the robbery count. The portions of the
charge that the jurors took home related to robbery, theft, and
attempt and were directed to the jury’s question about the
robbery offense. We recognize that there was some theoretical
overlap with the second-degree aggravated assault charge, which
also involved attempt. The jury convicted defendant of that
count.
Because of the nature of the crime, though, we see little
risk that the conviction for aggravated assault stemmed from the
attempt instruction. Second-degree aggravated assault requires
proof that defendant caused serious bodily injury or attempted
to cause serious bodily injury, see N.J.S.A. 2C:12-1b, and the
judge instructed the jury accordingly. The proofs at trial,
20
however, revealed that the case involved an actual shooting, and
the victim’s injuries were not in dispute. Plus the verdict
sheet referred only to whether defendant caused serious bodily
injury and did not mention “attempt.” In addition, in light of
the evidence presented, the jurors had to decide whether the
victims were more credible than defendant, or the other way
around, and that decision was not affected by the jury
instructions in question. As a result, it appears that the
instruction on attempt had no tendency to affect the conviction
for aggravated assault.
We therefore find from the record that the second ex parte
conversation also had no tendency to influence the verdict. See
Auld, supra, 2 N.J. at 432. In other words, the record
affirmatively overcomes any presumption of prejudice that might
otherwise exist. For that reason, we do not reverse defendant’s
convictions. Cf. Esso, supra, 684 F.3d at 352 (discouraging
practice yet finding no structural error when jurors took home
indictment and received appropriate limiting instructions).
Notwithstanding the outcome here, we caution trial judges
to avoid the pitfalls this case presents. Judges should not
engage in ex parte communications with jurors, even on innocuous
scheduling matters. Also, written jury instructions are for the
jury’s use during deliberations only in the jury room.
21
VI.
For the reasons stated above, we affirm the judgment of the
Appellate Division.
JUSTICES LaVECCHIA, ALBIN, HOENS, and PATTERSON and JUDGES
RODRÍGUEZ and CUFF (both temporarily assigned) join in CHIEF
JUSTICE RABNER’s opinion.
22
SUPREME COURT OF NEW JERSEY
NO. A-119 SEPTEMBER TERM 2011
ON CERTIFICATION TO Appellate Division, Superior Court
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
SHAFFONA MORGAN,
Defendant-Appellant.
DECIDED August 8, 2013
Chief Justice Rabner PRESIDING
OPINION BY Chief Justice Rabner
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY
CHECKLIST AFFIRM
CHIEF JUSTICE RABNER X
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE HOENS X
JUSTICE PATTERSON X
JUDGE RODRÍGUEZ (t/a) X
JUDGE CUFF (t/a) X
TOTALS 7