STATE OF NEW JERSEY VS. KENNETH D. HARDEN (17-04-0387 AND 17-03-0190, CUMBERLAND COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5935-17
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
KENNETH D. HARDEN,
a/k/a KENNETH HARDEN,
and BK BABY K,
Defendant-Appellant.
________________________
Argued January 13, 2021 – Decided June 10, 2021
Before Judges Accurso, Vernoia and Enright.
On appeal from the Superior Court of New Jersey, Law
Division, Cumberland County, Indictment Nos. 17-03-
0190 and 17-04-0387.
Peter T. Blum, Assistant Deputy Public Defender,
argued the cause for appellant (Joseph E. Krakora,
Public Defender, attorney; Peter T. Blum, of counsel
and on the brief).
Andre R. Araujo, Assistant Prosecutor, argued the
cause for respondent (Jennifer Webb-McRae,
Cumberland County Prosecutor, attorney; Andre R.
Araujo, of counsel and on the brief).
PER CURIAM
A jury convicted defendant Kenneth D. Harden of unlawful possession of
a weapon, certain persons not to have weapons, and possession of a controlled
dangerous substance (CDS). The court imposed an aggregate twenty-year
sentence with a ten-year period of parole ineligibility. Defendant appeals from
his convictions and sentence, and we reverse and remand for a new trial because
the court erred by denying defendant's motion to suppress statements he made
during a custodial interrogation and by improperly instructing the jury it was
obligated to reach a unanimous verdict after reporting it was deadlocked.
I.
In November 2016, a grand jury indicted defendant for charges arising out
of an April 29, 2016 incident during which a handgun and heroin were found in
an automobile defendant was observed driving and had just exited. The
indictment charged defendant with: second-degree unlawful possession of a
weapon, N.J.S.A. 2C:39-5(b)(1); third-degree possession of CDS, heroin,
N.J.S.A. 2C:35-10(a)(1); third-degree possession with intent to distribute CDS,
heroin, N.J.S.A. 2C:35-5(a)(1) and -5(b)(3); third-degree possession with intent
to distribute CDS in a school zone, N.J.S.A. 2C:35-7(a); and second-degree
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possession of a weapon by a convicted person, N.J.S.A. 2C:39-7(b)(1).
Defendant was represented by counsel at his January 17, 2017 arraignment on
the charges in the indictment.
On February 1, 2017, defendant was arrested on charges arising out of an
alleged attempted murder on April 28, 2016, the day before the incident that
gave rise to the offenses charged in the indictment. Ballistics testing revealed
the gun used in the April 28, 2016 alleged attempted murder was the same gun
recovered from the automobile on April 29, 2016 and for which defendant was
charged with possessory offenses in the indictment.
Immediately following his arrest on February 1, 2017, a detective spoke
with defendant. Prior to advising defendant of his Miranda1 rights and outside
of the presence of counsel representing defendant on the charges in the
indictment, the detective told defendant the gun used in the alleged attempted
murder was the same gun defendant "got caught with" the following day. In
response, defendant said, "I wasn't the only one in the car with that gun."
Defendant later also stated, "It wasn't my gun."
In April 2017, a grand jury returned a superseding indictment that
included charges related to the April 28 and 29, 2016 incidents. The indictment
1
Miranda v. Arizona, 384 U.S. 436 (1966).
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charged that on April 28, 2016, defendant committed the following offenses:
second-degree possession of a community gun for an unlawful purpose, N.J.S.A.
2C:39-4(a)(2), and second-degree unlawful possession of a weapon, N.J.S.A.
2C:39-5(b)(1). The indictment charged the following offenses related to the
April 29, 2016 incident involving the automobile: second-degree possession of
a weapon while committing the offense of possession of heroin with intent to
distribute, N.J.S.A. 2C:39-4.1(a); second-degree unlawful possession of a
weapon, N.J.S.A. 2C:39-5(b)(1); third-degree possession of heroin with intent
to distribute, N.J.S.A. 2C:35-5(a)(1) and -5(b)(3); and third-degree possession
of heroin, N.J.S.A. 2C:35-10(a)(1). The superseding indictment also charged
defendant with second-degree certain persons not to possess weapons, N.J.S.A.
2C:39-7(b)(1), on April 28 and 29, 2016.
The court later dismissed all charges based on the alleged April 28, 2016
incident. A bifurcated trial proceeded on the five charges arising out of the April
29, 2016 incident. Prior to trial, defendant moved to suppress the February 1,
2017 statements he made to the detective following his arrest on the charges
related to the April 28, 2016 incident. Defendant argued the statements were
obtained in violation of his Miranda rights and his right to remain silent. The
court held an evidentiary hearing and denied the motion, finding that although
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defendant was in custody when the statements were made, the statements were
not the product of an interrogation. Defendant moved for reconsideration,
arguing the court erred in the first instance by denying the motion and also that
the statements were obtained in violation of his right to counsel who, at the time,
represented him in connection with the then-pending initial indictment charging
him with the offenses related to the April 29, 2016 automobile incident. The
court denied the reconsideration motion.
The evidence at trial showed that on April 29, 2016, officers were looking
for defendant and observed him driving a silver Chevy Impala that was
registered to his mother. A detective testified he had previously seen defendant
driving the car, but he did not know who else had access to it and he had not
seen defendant driving it on the days immediately prior to April 29.
Shortly after the officers saw the car, defendant drove it into a parking lot,
stopped, and got out. Officers immediately approached defendant, who was the
car's sole occupant. While the officers waited for a tow truck to move the car to
another location to be searched, defendant's mother appeared and asked to take
the car. The officers denied the request.
A subsequent search of the car revealed: a loaded handgun magazine in
the center console; a loaded, operable handgun under the front passenger seat;
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and a brown box under the front passenger seat in which the officers found a
digital scale, 137 unused wax paper folds, and a plastic bag containing 2.5 grams
of heroin. The search of the car's center console also yielded a pill bottle for an
April 26, 2016 prescription issued to defendant, and a bank card and
identification card, both of which were issued in defendant's name. In the car's
trunk, officers found a piece of mail dated April 5, 2015, addressed to defendant.
The State tested the gun for fingerprints and DNA, but none was discovered
linking defendant to the weapon.
Defendant argued at trial the State failed to prove beyond a reasonable
doubt the gun belonged to him or was possessed by him. Defendant asserted the
car was not registered to him; others, including his mother, had access to it; and
the State lacked forensic evidence linking him to the weapon. The State argued
the other items found in the car—each of which referred to defendant—showed
defendant had control over, and possessed, all the items in the car. The State
also argued defendant's February 1, 2017 statement to the detective—that
defendant "wasn't the only one in the car with that gun. Guns get passed around
all the time"—was, "at the very least," an admission by defendant that he jointly
possessed the gun.
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In the initial phase of the bifurcated trial, the jury found defendant not
guilty of possession of heroin with intent to distribute and unlawful possession
of a weapon while committing a CDS offense. The jury found defendant guilty
of second-degree unlawful possession of a weapon and third-degree unlawful
possession of heroin. In the second phase of the trial, the jury found defendant
guilty of second-degree certain persons not to have weapons.
At sentencing, the court found aggravating factors three, the risk
defendant will commit another offense, N.J.S.A. 2C:44-1(a)(3), six, the nature
and extent of defendant's prior record, N.J.S.A. 2C:44-1(a)(6), and nine, the
need to deter defendant and others from violating the law, N.J.S.A. 2C:44 -
1(a)(9); found no mitigating factors, see generally N.J.S.A. 2C:44-1(b)(1) to
(14); and determined the aggravating factors substantially outweighed the
mitigating factors. The court sentenced defendant to eight years with a four -
year period of parole ineligibility for second-degree unlawful possession of a
weapon, to run concurrently with defendant's four-year sentence for third-degree
possession of CDS, heroin. The court also imposed an extended term twelve-
year sentence with a six-year period of parole ineligibility on defendant's
conviction for second-degree certain persons not to have weapons, to run
consecutively to the sentence imposed on the unlawful possession of a weapon
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and possession of CDS charges. Thus, the court imposed an aggregate twenty-
year sentence with a ten-year period of parole ineligibility on the charges in the
superseding indictment. The court further directed that the twenty -year
aggregate sentence run consecutive to concurrent five-year sentences the court
imposed on charges in an unrelated indictment to which defendant pleaded
guilty following his convictions at trial.2
Defendant appealed from his convictions and the sentence imposed on the
charges in the superseding indictment. He offers the following arguments on
appeal:
POINT I
[DEFENDANT'S] STATEMENTS SHOULD BE
SUPPRESSED AND A NEW TRIAL SHOULD BE
GRANTED (A) BECAUSE OF A VIOLATION OF
HIS SIXTH-AMENDMENT RIGHT TO COUNSEL
AND (B) BECAUSE OF A FIFTH-AMENDMENT
MIRANDA VIOLATION.
A. The Detective Should Not Have Tried to Question
[Defendant] About the Indicted Case Because
[Defendant's] Assigned Counsel Was Not Present.
2
Following trial on the charges in the superseding indictment but prior to
sentencing, defendant pleaded guilty to two CDS-related charges in another
indictment (Indictment 17-03-0190) that was unrelated to the charges arising
from the April 29, 2016 incident. Defendant was sentenced on those unrelated
charges the same day he was sentenced for his convictions by the jury.
Defendant does not appeal from his convictions or sentence under Indictment
17-03-0190.
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B. Alternatively, the Detective Should Have
Administered Miranda Warnings Before Confronting
[Defendant] with the Evidence and Asking Him to Talk
Because this Discussion Was Reasonably Likely to
Elicit an Incriminating Response.
POINT II
THE TRIAL COURT COMMIT[T]ED PLAIN ERROR
BY CONTRADICTING THE BEYOND-A-
REASONABLE-DOUBT STANDARD AND
INSTRUCTING THAT THE JURORS COULD
CONVICT IF THEY INFERRED THAT
POSSESSION WAS "MORE PROBABLE THAN
NOT."
POINT III
THE TRIAL COURT PLACED UNDUE PRESSURE
ON THE DELIBERATING JURY TO REACH [AN]
AGREEMENT BY ORDERING ONE JUROR TO
CONTINUE DELIBERATING WITHOUT
ADEQUATELY INQUIRING INTO HER REQUEST
TO BE EXCUSED AND THEN DELIVERING AN
UNBALANCED INSTRUCTION TO THE
DEADLOCKED JURY THAT IMPOSED AN
"OBLIGATION" TO AGREE.
POINT IV
[DEFENDANT] SHOULD BE RESENTENCED
BECAUSE THE COURT FAILED TO APPLY THE
YARBOUGH3 FACTORS IN IMPOSING
CONSECUTIVE SENTENCES ON TWO GUN
POSSESSION CHARGES THAT WERE BASED ON
THE SAME GUN AND BECAUSE THOSE
3
State v. Yarbough, 100 N.J. 627 (1985).
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FACTORS WOULD HAVE WEIGHED
OVERWHELMINGLY AGAINST SUCH A
SENTENCE.
We address each of defendant's arguments in turn.
II.
Defendant argues his convictions should be reversed because the court
erred by denying his motion to suppress statements he made following his
February 1, 2017 arrest and by admitting the statements at trial. More
particularly, he contends his statements were improperly obtained during a
custodial interrogation without the administration of Miranda rights. He also
contends the detective violated his Sixth Amendment right to counsel by
speaking to him about the alleged April 28, 2016 attempted murder involving
the same gun he was under indictment for possessing on April 29, 2016, in the
absence of the attorney representing him on the charges in the indictment.
"Generally, on appellate review, a trial court's factual findings in support
of granting or denying a motion to suppress must be upheld when 'those findings
are supported by sufficient credible evidence in the record.'" State v. A.M., 237
N.J. 384, 395 (2019) (quoting State v. S.S., 229 N.J. 360, 374 (2017)). An
appellate court should not disturb a trial court's findings unless "they are so
clearly mistaken 'that the interests of justice demand intervention and
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correction.'" State v. Elders, 192 N.J. 224, 244 (2007) (quoting State v. Johnson,
42 N.J. 146, 162 (1964)). "An appellate court owes no deference, however , to
'conclusions of law made by lower courts in suppression decisions'" and review s
such decisions de novo. A.M., 237 N.J. at 396 (quoting State v. Boone, 232 N.J.
417, 426 (2017)).
A.
"The right against self-incrimination is guaranteed by the Fifth
Amendment to the United States Constitution and this state's common law, now
embodied in statute, N.J.S.A. 2A:84A-19, and evidence rule, N.J.R.E. 503."
S.S., 229 N.J. at 381 (quoting State v. Nyhammer, 197 N.J. 383, 399 (2009)).
To protect a person's right against self-incrimination, a person in custody
must be warned prior to any questioning that he has the
right to remain silent, that anything he says can be used
against him in a court of law, that he has the right to the
presence of an attorney, and that if he cannot afford an
attorney one will be appointed for him prior to any
questioning if he so desires.
[Miranda v. Arizona, 384 U.S. 436, 479 (1966).]
The purpose of the Miranda warnings is to protect a suspect from the "inherently
coercive atmosphere of custodial interrogation." A.M., 237 N.J. at 397.
"Miranda warnings are required 'whenever a person in custody is
subjected to either express questioning or its functional equivalent.'" State v.
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Wright, 444 N.J. Super. 347, 363 (App. Div. 2016) (quoting Rhode Island v.
Innis, 446 U.S. 291, 300-01 (1980)); see also In re A.A., 240 N.J. 341, 354
(2020) (explaining our Supreme Court "has adopted the Innis standard"); State
v. Bey, 112 N.J. 45, 68 n.13 (1988) (adopting the Innis standard for defining an
interrogation in New Jersey). For purposes of the administration of Miranda
rights, an interrogation consists "not only [of] express questioning, but
also . . . any words or actions . . . (other than those normally attendant to arrest
and custody) that the police should know are reasonably likely to elicit an
incriminating response [whether inculpatory or exculpatory] from the suspect."
Wright, 444 N.J. Super. at 364 (fourth alteration in original) (quoting Innis, 446
U.S. at 301). "The latter portion of the definition" of interrogation—pertaining
to words or actions the police should know are reasonably likely to elicit an
incriminating response—"focuses primarily on the perceptions of the suspect,
rather than the intent of the police." State v. Mallozzi, 246 N.J. Super. 509, 515
(App. Div. 1991) (citing Innis, 446 U.S. at 301). An "incriminating response"
is "any response—whether inculpatory or exculpatory—that the prosecution
may seek to introduce at trial." State v. Ward, 240 N.J. Super. 412, 418 (App.
Div. 1990) (quoting Innis, 446 U.S. at 301 n.5).
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"[B]ooking procedures and the routine questions associated [with that
process] are ministerial in nature" and do not constitute interrogation. State v.
Bohuk, 269 N.J. Super. 581, 593 (App. Div. 1994) (second alteration in original)
(quoting Mallozzi, 246 N.J. Super. at 515). Likewise, "unexpected
incriminating statements made by in custody defendants in response to no n-
investigative questions by the police without prior Miranda warnings are
admissible." State v. M.L., 253 N.J. Super. 13, 21 (App. Div. 1991).
In contrast, "[t]he initiation of a general discussion about the victim
clearly satisfies [the Innis] standard," as does a "generalized discussion relating
to [the] investigation." Bey, 112 N.J. at 68 n.13 (citing Christopher v. Florida,
824 F.2d 836, 845 (11th Cir. 1987)). For example, in Wright, we found the
functional equivalent of an interrogation where a defendant in custody made
inculpatory statements after detectives advised him that he fit the description of
the perpetrator of an armed robbery, a victim was being brought to identify him,
and the officers located a gun near where the defendant stood. 444 N.J. Super.
at 365-66. We found "the officer should surely have known that his meting out
of the information in the way he did was reasonably likely to evoke an
incriminating response, and thus . . . it amounted to an interrogation." Id. at 366.
In Ward we found a custodial investigation under the Innis standard where a
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detective visited a defendant in his cell after he had been booked and showed
him photographs of two suspects in a robbery in which he was also a suspect.
240 N.J. Super. at 417. Similarly, in State v. Brown, we found a custodial
interrogation where a detective gave a defendant in custody a "detailed and
apparently well-prepared" presentation of evidence against him, prompting the
defendant to make statements concerning the crimes under investigation. 282
N.J. Super. 538, 550 (App. Div. 1995).
Here, it is undisputed defendant was in custody when he spoke with the
detective on February 1, 2017. The court, however, found defendant was not
subject to an interrogation because the detective did no more than tell defendant
why he had been arrested and ask if defendant wanted to talk. The court also
found the detective did not "ask[ defendant] a specific question other than, do
you want to talk about this?"
The court ignored that under the Innis standard, a custodial interrogation
does not require direct questioning, but instead may consist of its functional
equivalent, Wright, 444 N.J. Super. at 363, including a generalized discussion
of the evidence against the defendant, see Bey, 112 N.J. at 68 n.13. To be sure,
the detective properly advised defendant of the charges against him and inquired
generally if defendant wanted to speak with him, but the detective did not stop
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there. The detective moved beyond proper ministerial booking questions, see
Mallozzi, 246 N.J. Super. at 514-16, and discussed the evidence against
defendant. The detective explained defendant was "caught with a[] gun" on
April 29, 2016 that "came back to a shooting from the day before," and defendant
was therefore charged with attempted murder and possessory weapons offenses.
Moments later, the detective continued to detail the evidence against
defendant, stating "this shooting happened in April or April 28 at like 9:30
around about and then 4:30 the next day you got caught with the gun, so . . . ."
The detective's point was well-made; the State had a seemingly strong case
against defendant because the evidence showed he possessed a handgun on April
29, 2016 that was used the day before to commit an alleged attempted murder.
Defendant responded, interrupting the detective, making the inculpatory
statement the State sought to be admitted at trial. Defendant said, "I wasn't the
only one in the car with that gun. Guns get passed around all the time."
The detective's summary of the evidence, linking the gun defendant
allegedly possessed on April 29, 2016 with the shooting that occurred hours
earlier on the previous day, exceeded the permissible routine and ministerial
questioning of defendant for booking and other administrative purposes that
does not constitute a custodial interrogation requiring Miranda warnings. Cf.
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Mallozzi, 246 N.J. Super. at 514-16; State v. Cunningham, 153 N.J. Super. 350,
352, 354 (App. Div. 1977). The detective's failure to offer any explanation for
supplying defendant with the summary of the evidence permits the inference the
detective's explanation was not provided inadvertently. Wright, 444 N.J. Super.
at 366. The detective's summary of the evidence linking defendant to the
attempted murder represented a subtle but effective coercive strategy that
evoked defendant's inculpatory statements.
Defendant's statements were "not simply a spontaneous outburst elicited
casually or innocently without the State's purposeful enticement or
encouragement." Ward, 240 N.J. Super. at 417. Defendant responded, as could
reasonably be expected when he was confronted with seemingly compelling
evidence he committed a very serious crime, with a statement refuting the
detective's claim he was "caught with [the] gun" allegedly involved in the
attempted murder. See Wright, 444 N.J. Super at 366. Thus, the detective's
summary of that evidence was the functional equivalent of an interrogation that
first required the administration of Miranda warnings. See Bey, 112 N.J. at 68
n.13; Wright, 444 N.J. Super. at 365-67. The failure to provide the warnings
prior to defendant making the statements required suppression of the statements
at trial. See State v. Hubbard, 222 N.J. 249, 272 (2015) (finding statements
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made during a custodial interrogation without the administration of Miranda
warnings "must be suppressed"). The court erred by finding otherwise.
B.
Defendant also claims his statements to the detective should have been
suppressed because he was deprived of his right to counsel. Both our federal
and state constitutions guarantee the right to counsel in a criminal prosecution.
U.S. Const. amend. VI; N.J. Const. art. I, ¶ 10. "[T]he right to counsel 'is
triggered when "adversary judicial proceedings have been initiated."'" State v.
A.G.D., 178 N.J. 56, 63 (2003) (quoting State v. Sanchez, 129 N.J. 261, 265
(1992)); see also Kirby v. Illinois, 406 U.S. 682, 688 (1972). It is undisputed
that an "[i]ndictment triggers the onset of the formal adversarial judicial
process." State v. Wint, 236 N.J. 174, 203 (2018); see also Kirby, 406 U.S. at
688-89.
The "Sixth Amendment right to counsel is 'offense specific' in its
attachment." State v. Harris, 181 N.J. 391, 435 (2004); see also Texas v. Cobb,
532 U.S. 162, 164 (2001). Our Supreme Court has observed, however, that "[i]f
the offense under investigation is based on essentially the same factual context
as the charged offense, assertion of the Sixth Amendment right to counsel on
the charged offense should bar police-initiated interrogation on the related
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offense." State v. Tucker, 137 N.J. 259, 278 (1994). On the other hand, the
police may interview a represented defendant "concerning a totally unrelated"
offense. Id. at 276 (citing McNeil v. Wisconsin, 501 U.S. 171, 175-76 (1991)).
The alleged April 28 and 29, 2016 incidents involved some separate
offenses. The April 29, 2016 incident included possessory CDS offenses, and
the April 28, 2016 incident included allegations of attempted murder. The
incidents, however, share a common factual context and criminal offenses that
were at the center of the detective's February 1, 2017 interrogation of defendant.
In both incidents, defendant was accused of unlawful possession of the same
handgun, and, more importantly, as explained by the detective on February 1,
2017, defendant's alleged possession of the handgun on April 29, 2016,
established his participation in the attempted murder with the handgun on the
preceding day, April 28, 2016. The detective focused on defendant's alleged
possession of the handgun on April 29, 2016, stating defendant was "caught with
[the] gun," as evidence establishing defendant's participation in the alleged
attempted murder on the previous day.
The detective spoke to defendant about facts common to both the new
charges based on the alleged April 28, 2016 attempted murder and the April 29,
2016 possessory weapons offenses for which defendant had already been
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indicted and was represented by counsel. The detective expressly sought to
speak with defendant about the gun defendant had already been charged in an
indictment with possessing, and the use of the gun in an alleged attempted
murder.
The detective told defendant they could "[t]alk about [whose] gun it was."
That comment was not limited to an inquiry about wholly unrelated offenses
allegedly committed on April 28 and 29, 2016. It was directed to facts—
ownership and possession of the handgun—and offenses—possessory weapons
offenses—common to the April 28, 2016 alleged attempted murder, as well as
to the April 29, 2016 incident for which defendant had been charged in an
indictment and was represented by counsel. And the detective's questioning
evoked an inculpatory statement from defendant that the State introduced at the
trial on the indictment charging defendant with offenses based solely on the
April 29, 2016 incident. Because defendant had been indicted and was
represented by counsel on the charges in the indictment when the February 1,
2017 interrogation occurred in the absence of defendant's counsel, defendant's
right to counsel was violated and his statements should have been suppressed.
See Tucker, 137 N.J. at 278.
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We reject the State's argument to the contrary. The State relies on Harris,
claiming defendant's Sixth Amendment right to counsel was not violated. In
Harris, the defendant murdered a woman with a gun and hid the body. 181 N.J.
at 425. Ten days after the woman went missing, officers arrested the defendant
on a weapons charge. Id. at 433. Several months later, the defendant became a
suspect in the woman's disappearance, and an officer involved in the
investigation encouraged the defendant's accomplice to write a letter to the
defendant about the missing woman. Id. at 433-34. The defendant responded
to the accomplice's letter, and his response was admitted into evidence at trial.
Id. at 434-35. Notably, when officers arrested the defendant for the weapons
charge, and spoke to the defendant's accomplice, they did not know the weapon
the defendant was charged with possessing was also the weapon used in the
woman's murder. Id. at 433.
The Court found the defendant's Sixth Amendment right to counsel had
not attached to his murder charge when the officers employed the accomplice to
write the letter to the defendant because the officers did not know at the time the
defendant was charged with possessing the gun that it was the murder weapon,
nor did the officers know it was the murder weapon when they encouraged the
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accomplice to write a letter to the defendant. Id. at 435-36. Thus, the Court
found no Sixth Amendment violation. Ibid.Unlike in Harris, here the detective knew during the February 1, 2017
interrogation that the gun defendant was charged with possessing on April 29,
2016 was also the gun used in the shooting on April 28, 2016. Indeed, the
detective used that fact as a means to evoke defendant's statements. In addition,
the detective would have known any information defendant revealed about
possession and ownership of the gun would inculpate defendant on the charges
for which he had been indicted and was represented by counsel. No similar
circumstances were extant in Harris.
Further, and as noted, the State admitted defendant's statements into
evidence at the trial on the charges arising from the April 29, 2016 incident—
charges for which defendant had been indicted when he made the statements. In
contrast, in Harris, the State sought to admit the defendant's statements into
evidence at the trial pertaining to the defendant's homicide charges, not the
unrelated weapons charges for which the defendant's Sixth Amendment rights
had attached when he made the statements. Id. at 433-36.
We are therefore convinced defendant's Sixth Amendment right to counsel
was violated by the detective's February 1, 2017 interrogation. Defendant's
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statements should have been suppressed for that reason. See Sanchez, 129 N.J.
at 279 (finding the defendant's statements made in violation of his Sixth
Amendment right to counsel should not have been admitted at trial).
C.
Based on our review of the record, we are also persuaded that admission
of defendant's statements from the February 1, 2017 interrogation in violation
of his Miranda rights, his right to remain silent, and his right to counsel warrants
reversal of his convictions. Where, as here, a defendant challenged the
admissibility of his or her statements obtained during an interrogation, we will
not reverse a conviction unless the court's error is "clearly capable of producing
an unjust result." State v. J.R., 227 N.J. 393, 417 (2017) (quoting R. 2:10-2).
We will not find an error harmless "if there is a reasonable doubt as to whether
the error contributed to the verdict." Ibid. The error "must be real [and]
sufficient to raise a reasonable doubt as to whether [it] led the jury to a verdict
it otherwise might not have reached." Ibid. (alterations in original) (quoting
State v. Lazo, 209 N.J. 9, 26 (2012)).
The evidence against defendant was circumstantial. The gun and CDS
found were under the passenger seat of a car defendant did not own. There was
no evidence establishing how long defendant used the car prior to him being
A-5935-17
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observed by the police driving it on April 29, 2016. We appreciate there was
other evidence—the prescription bottle, bank and identification cards, and mail
bearing defendant's name—that support the jury's verdict, but the State argued
defendant's statements during the February 1, 2017 interrogation constituted
direct evidence of defendant's possession of the gun—a purported admission by
defendant that, "[a]t the very least," he jointly possessed the gun. In our view,
admission of defendant's statements raises a reasonable doubt as to whether error
in admitting the statements contributed to the jury's verdict because acceptance
of the purported admission would have removed any doubt concerning
defendant's possession of the gun and CDS otherwise hidden from view in the
vehicle. The error was therefore not harmless and requires reversal of
defendant's convictions.
III.
We also address defendant's argument, raised for the first time on appeal,
that the court committed plain error by instructing the jurors in accordance with
Model Jury Charges (Criminal), "Possession of Firearms, Weapons, Destructive
Devices, Silencers or Explosives in a Vehicle (N.J.S.A. 2C:39-2)" (approved
Mar. 30, 1993). Defendant claims the instruction permitted the jurors to convict
him on the possessory gun offenses if they inferred possession of the handgun
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was "more probable than not." Defendant argues the charge erroneously
undermines the requirement that the State prove every element of a crime
beyond a reasonable doubt.
Where "a defendant fails to raise an issue at trial, appellate review is
governed by the plain error standard." State v. Maloney, 216 N.J. 91, 104
(2013). In a jury charge context, plain error is "[l]egal impropriety in the charge
prejudicially affecting the substantial rights of the defendant sufficiently
grievous to justify notice by the reviewing court and to convince the court that
of itself the error possessed a clear capacity to bring about an unjust result."
State v. Kornberger, 419 N.J. Super. 295, 301 (App. Div. 2011) (alteration in
original) (quoting State v. Torres, 183 N.J. 554, 564 (2005)).
Here, the court gave the following instruction:
With regard to the issue of possession—I’m
sorry. I have previously instructed you concerning your
consideration of circumstantial evidence presented in
this case.
That is, you may infer a fact from other facts in
the case if you find it more probable than not that the
inferred fact is true.
Evidence has been presented that a handgun was
found in the vehicle. If you find that the [d]efendant
was the sole occupant of the vehicle, you may infer that
this occupant possessed the handgun.
Furthermore, if you find that the vehicle had
more than one occupant, you may infer that the
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handgun was possessed by all of the occupants. You
are never required or compelled to draw any inference.
It is your exclusive province to determine
whether the facts and circumstances shown by the
evidence support any inferences and you are always
free to accept or reject them, if you wish.
The instruction is identical in all material respects to the model jury charge. See
Model Jury Charges (Criminal), "Possession of Firearms, Weapons, Destructive
Devices, Silencers or Explosives in a Vehicle (N.J.S.A. 2C:39-2)" (approved
Mar. 30, 1993).
We disagree with defendant's claim the model jury charge permitted the
jurors to "convict if they inferred that possession [of the handgun] was 'more
probable than not.'" The model jury charge is derived from N.J.S.A. 2C:39-2,
which states in relevant part, "When a firearm . . . is found in a vehicle, it is
presumed to be in the possession of the occupant if there is but one. If there is
more than one occupant in the vehicle, it shall be presumed to be in the
possession of all . . . ." N.J.S.A. 2C:39-2(a). In State v. Bolton, we considered
N.J.S.A. 2C:39-2 and determined a jury could not be instructed that it may
"presume" something; instead, "the jury may be advised that it can draw an
inference if it finds it more probable than not that the inference is true." 230
N.J. Super. 476, 480 (App. Div. 1989).
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The Supreme Court has also explained that "[a]n inference reasonably
may be drawn when 'it is more probable than not that the inference is true; the
veracity of each inference need not be established beyond a reasonable doubt in
order for the jury to draw the inference.'" State v. Thomas, 132 N.J. 247, 256
(1993) (quoting State v. Brown, 80 N.J. 587, 592 (1979)). The Court has
cautioned, however, that "the State must still be held to its burden of proving
each element of [an] offense beyond a reasonable doubt." Ibid. An inference
charge "reduce[s] the burden of persuasion below a 'reasonable doubt' standard,"
but "only if the jury were compelled to draw the inference and convict on th[at]
basis . . . alone." State v. Humphreys, 54 N.J. 406, 415 (1969) (quoting State v.
DiRienzo, 53 N.J. 360, 376 (1969)). Thus, a court must inform a jury that "an
inference of one fact from another is never binding." Ibid.In our assessment of a challenge to a jury charge, we must read the charge
"'as a whole in determining whether there was any error,' and the effect of any
error must be considered 'in light of the overall strength of the State's case.'"
State v. Gonzalez, 444 N.J. Super. 62, 70-71 (App. Div. 2016) (citations
omitted). Although "trial courts and counsel must review charges for potential
error, even in model jury charges," State v. Docaj, 407 N.J. Super. 352, 370
(App. Div. 2009), courts should also instruct the jury using the applicable model
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jury charges that are "consistent" with our laws, see State v. Rodriguez, 365 N.J.
Super. 38, 53 (App. Div. 2003); see also State v. R.B., 183 N.J. 308, 325 (2005);
Flood v. Aluri-Vallabhaneni, 431 N.J. Super. 365, 383-84 (App. Div. 2013).
Here, the court relied on the model jury charge, which was applicable
based on the evidence presented and consistent with N.J.S.A. 2C:39-2 and case
law concerning presumptions and inferences in jury charges. See, e.g., Bolton,
230 N.J. Super. at 479-81. The court did not instruct the jury to rely on any
"presumptions," and it expressly instructed the jurors they were "never required
or compelled to draw any inference." See Humphreys, 54 N.J. at 415 (quoting
DiRienzo, 53 N.J. at 376). Also, in its instructions on the elements of unlawful
possession of a handgun, the court repeated on four separate occasions th at the
State must prove each element of the crime beyond a reasonable doubt. We may
properly assume the jury followed the instructions, see State v. Ross, 229 N.J.
389, 415 (2017), which properly explained the manner in which an inference
may be drawn and required that a conviction rest solely on proof of each element
of possession beyond a reasonable doubt. We therefore find no error in the
court's use of the model jury charge based on the record presented.
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IV.
Defendant also argues he was deprived of his due process rights because
the court placed undue pressure on the jurors to reach a unanimous decision by
requiring Juror Number Two to deliberate after she indicated jury service
prevented her from earning the income required to support her family a nd by
advising the jury it had an obligation to reach a unanimous verdict after it
reported it was deadlocked. Defendant contends the court's interaction with
Juror Number Two, followed by its instruction to the jury, was unduly coercive
and warrants a new trial.
A.
A trial court's decision to remove a juror rests within its discretion. See
State v. Williams, 171 N.J. 151, 162 (2002) (quoting R. 1:8-2(d)). "[J]udicial
discretion means legal discretion in the exercise of which the court must take
account of the law applicable to the particular circumstances of the case and be
governed accordingly. Implicit is conscientious judgment directed by law and
reason and looking to a just result." State v. Madan, 366 N.J. Super. 98, 110
(App. Div. 2004) (quoting Wasserstein v. Swern & Co., 84 N.J. Super. 1, 6 (App.
Div. 1964)). A court abuses its discretion when its "decision is 'made without a
rational explanation, inexplicably depart[s] from established policies, or rest[s]
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on an impermissible basis.'" State v. R.Y., 242 N.J. 48, 65 (2020) (quoting Flagg
v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002)).
"Rule 1:8-2(d)(1) governs the removal and substitution of jurors in civil
and criminal trials, both before and after the commencement of deliberations."
State v. Jenkins, 182 N.J. 112, 123 (2004). Once deliberations have begun, a
deliberating juror may be replaced with an alternate juror only in limited
circumstances, including death, illness, or "other inability to continue." Id. at
123-24 (quoting R. 1:8-2(d)(1)). "Although the 'death' and 'illness' standards
are narrow, the 'inability-to-continue' standard has been acknowledged to be
somewhat vague and broad; accordingly, the Court has construed and applied it
narrowly." Williams, 171 N.J. at 163.
Our Supreme Court recognizes financial hardship may meet Rule 1:8-
2(d)'s inability-to-continue standard. Id. at 167. Courts must be careful,
however, in determining whether removal of a juror is appropriate. Before
dismissing a juror due to financial hardship, the "trial court should determine
that the financial hardship is sufficiently significant to justify excusing the juror
during deliberations, and would be likely to prevent the juror from concentrating
on and participating fully in the deliberations of the jury." Id. at 168.
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The court must also ensure a juror's removal does not stem from the
deliberative process. Jenkins, 182 N.J. at 124-25. "A deliberating juror may not
be discharged and replaced with an alternate unless the record 'adequately
establishes that the juror suffers from an inability to function that is personal
and unrelated to the juror's interaction with the other jury members.'" State v.
Musa, 222 N.J. 554, 566 (2015) (quoting Jenkins, 182 N.J. at 124-25).
During deliberations, Juror Number Two asked to be excused because she
would "not be able to feed [her] family" if she missed more days of work, and it
was "causing [her] anxiety needing to take medication." The court then
addressed the request with Juror Number Two:
The Court: So I got your note. So what's going
on? When we questioned Number Two when I read
those questions off whether there's going to be a
significant financial problem, I usually excuse jurors
when they tell me, I'm not going to be able to feed my
family.
...
[Juror Number Two]: I didn't say that because
I've never had to deal with this so thinking it would be
okay is different than actually experiencing it. . . . So
now that I'm experiencing the reality that I'm not going
to be getting a paycheck, it's starting to sink that this
is—I'm not going to be able to (inaudible).
The Court: Okay. What are your normal hours
and who do you work for?
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[Juror Number Two]: I work for Robin's Nest.
I'm a registered nurse. I do home visits Monday
through Friday, 8:00 to 4:00.
The Court: Okay.
[Juror Number Two]: And I'm the breadwinner in
my family. I have three kids. I have a house and bills,
so—
The Court: Do you have other people that are
coming in? Because you're here already you've missed
your appointments today. Somebody had to make
arrangements for you today?
[Juror Number Two]: No. . . . It doesn't work
like that. I schedule my own visits, so like yesterday
you sent us home, I was able to go on a couple visits.
So fortunately I did get a few hours in yesterday.
The Court: Okay. And see because I don't know
how long deliberations are going to last. I don't ask
those questions. I'm not involved in that at all. So you
would be able to make arrangements to do something
like after hours then if you want to make appointments
that way through the home health stuff?
[Juror Number Two]: If my clients can—
The Court: Can accommodate that?
[Juror Number Two]: —do that. Most of these
moms don't want to be seen at night because their
babies—
...
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The Court: Okay. So you're here already for the
day. . . . I need to make sure that your reason for
wanting to leave or to try and be excused at this point
after the trial is already in deliberations, I want to make
sure it has nothing to do with what's going on in that
deliberation room.
[Juror Number Two]: No, it's—
The Court: It is not. Okay. You don't have to tell
me anything else.
[Juror Number Two]: It's strictly about income.
The Court: Income. Okay. All right. So here's
what I'm going to do. I'm going to have you, because
you're here already today and I apologize for
that. . . . We don't want anybody to be punished as a
result of having to do an obligation, but right now I
can't—you saw what happened yesterday. I had one
alternate and she had to skedaddle because she was ill
so I had to put it off.
So I'm going to leave you in place today for
deliberation purposes. We'll see how things go
throughout the course of the day . . . . but since you're
here already I'm going to ask you to continue with the
deliberations with the rest of the jury. Okay.
Guys, you have any questions for Juror Number
Two? No?
[Defense Counsel]: I have nothing.
Under these circumstances, we find no abuse of discretion in the court's
decision to permit Juror Number Two to continue deliberating for the day. The
juror stated her request to be excused was unrelated to the deliberations, and the
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juror was available to continue deliberations that day. Neither Juror Number
Two nor defense counsel objected. We find no evidence the court's handling of
the request was coercive in any manner. To the contrary, the court explained it
would revisit the issue at the end of the day if necessary. Thus, Juror Number
Two understood that if the jury did not reach a verdict by the end of the day, her
request to be excused would be reconsidered by the court. The court's decision
not to excuse Juror Number Two does not warrant a new trial.
B.
Defendant also argues the court erred by instructing the jury it was
obligated to reach a unanimous verdict after it reported it was deadlocked. When
a jury declares it is unable to reach a unanimous verdict, "the decision whether
to grant a mistrial turns on whether the duration of the deliberations balanced
against the length of the trial and the complexity of the proofs shows the jury
has made a good-faith effort to reach a sustainable verdict." State v. Gleaton,
446 N.J. Super. 478, 514 (App. Div. 2016) (quoting State v. Dorsainvil, 435 N.J.
Super. 449, 481 (App. Div. 2014)). If, after weighing these factors, a court "is
not satisfied that all possibilities of reaching a verdict have been exhausted," it
"may send a jury back for further deliberations." State v. Harris, 457 N.J. Super.
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33
34, 50 (App. Div. 2018) (quoting State v. Carswell, 303 N.J. Super. 462, 478
(App. Div. 1997)).
However, when a trial court "instruct[s] a jury that reports being
deadlocked, [it] must be especially vigilant to avoid communicating a results-
oriented message that could be perceived as intolerant of dissent and
antagonistic to the free expression of strongly held beliefs that may not be shared
by a majority of the deliberating jurors." Gleaton, 446 N.J. Super. at 515
(quoting Dorsainvil, 435 N.J. Super. at 481). An instruction that impresses upon
the jury a need to reach a unanimous verdict is considered coercive. See State
v. Figueroa, 190 N.J. 219, 227, 240-43 (2007) (holding a court's supplemental
charge that it would be around all weekend and "as long as it takes [the jury] to
go through this process" was coercive because it implied the jury would have to
reach a unanimous verdict).
Ideally, before a court directs a jury to continue deliberating after
deadlock claims, it should provide the jury with a Czachor4 charge. See State v.
Ross, 218 N.J. 130, 143-45 (2014); State v. Johnson, 436 N.J. Super. 406, 423
(App. Div. 2014). The charge instructs each juror to "deliberate with a view to
reaching an agreement," and to "decide the case for [him or herself] . . . after an
4
State v. Czachor, 82 N.J. 392 (1980).
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34
impartial consideration of the evidence with [his or her] fellow jurors." Model
Jury Charges (Criminal), "Judge's Instructions on Further Jury Deliberations"
(approved Jan. 14, 2013). The instruction further explains jurors should "not
hesitate to re-examine [their] own views and change [their] opinion if convinced
it is erroneous," but cautions that jurors should "not surrender [their] honest
conviction[s] as to the weight or effect of evidence solely because of the opinion
of [their] fellow jurors, or for the mere purpose of returning a verdict." Ibid.The number of times a court may instruct a jury using the Czachor charge is
within the court's sound discretion. See Figueroa, 190 N.J. at 235; State v.
Czachor, 82 N.J. 392, 406-07 (1980).
Here, the jury reported it was deadlocked after deliberating approximately
two hours and ten minutes. Instead of reading the jury the Czachor charge, the
court told the jurors, "You have an obligation to deliberate and to reach a
unanimous verdict. That's your obligation. I'm going to send you back in. I'm
going to ask you to continue your deliberations." Defense counsel objected to
the court ordering continued deliberations. Thirty-seven minutes after the court
instructed the jurors they had an "obligation to deliberate and to reach a
unanimous verdict," the jury returned a verdict.
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The court did not abuse its discretion by sending the jury back to
deliberate, but it erred by instructing the jury it was obligated to reach a
unanimous verdict. The instruction was improperly coercive, see Figueroa, 190
N.J. at 240-43, and wholly inaccurate. A jury has no obligation to reach a
unanimous verdict, and no individual juror has an obligation to reach a verdict
agreeable to his or her fellow jurors.
The State argues language consistent with the Czachor charge was
included in the court's initial charge to the jury and that we may presume the
jury understood and faithfully complied with the trial court's initial instructions.
That argument is unavailing, however, because we may also presume the jury
honored the court's unequivocal direction, provided in response to the jury's
report of a deadlock, that it was obligated to reach a unanimous verdict. See
State v. Miller, 205 N.J. 109, 126 (2011); see also Figueroa, 190 N.J. at 241(rejecting the State's argument the trial court's proper instruction of the Czachor
charge a day earlier sufficiently counteracted the coercive nature of the court's
instructions to the jury when it reported it was deadlocked).
We are convinced the court's erroneous instruction was clearly capable of
producing an unjust result. The instruction imposed an obligation on the jury
that is inconsistent with each juror's duty not to render judgment on the evidence
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36
and defendant's guilt "for the mere purpose of returning a verdict." The
instruction was improper and coercive. It alone requires reversal of defendant's
convictions.
V.
Because we reverse and remand for a new trial, it is not necessary to
address defendant's claim the court erred by imposing consecutive sentences on
defendant's convictions for unlawful possession of a handgun, N.J.S.A. 2C:39-
5(b)(1), and certain persons not to possess weapons, N.J.S.A. 2C:39-7(b)(1),
without making findings as to each of the factors pertinent to imposition of
consecutive sentences established in State v. Yarbough, 100 N.J. 627, 643-44
(1985). We note only that if defendant is convicted of multiple offenses
following his retrial, imposition of consecutive sentences must be based on an
analysis of each of the Yarbough factors and must be supported by findings of
fact and conclusions of law in accordance the Yarbough standard. Cf. State v.
Cuff, 239 N.J. 321, 350-52 (2019) (reversing the imposition of a consecutive
sentence because the court failed to make findings supporting the sentence under
Yarbough).
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Reversed and remanded for a new trial. We do not retain jurisdiction.
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