STATE OF NEW JERSEY VS. SIWAN R. BROWN (15-09-1253, HUDSON COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2838-16T1
STATE OF NEW JERSEY,
APPROVED FOR PUBLICATION
AS REDACTED
Plaintiff-Respondent, December 27, 2018
v. APPELLATE DIVISION
SIWAN R. BROWN, a/k/a
SHAWN BROWN,
Defendant-Appellant.
____________________________
Argued November 26, 2018 – Decided December 27, 2018
Before Judges Sabatino, Sumners and Mitterhoff.
On appeal from Superior Court of New Jersey, Law
Division, Hudson County, Indictment No. 15-09-1253.
Daniel S. Rockoff, Assistant Deputy Public Defender,
argued the cause for appellant (Joseph E. Krakora,
Public Defender, attorney; Daniel S. Rockoff, of
counsel and on the brief).
Lila B. Leonard, Deputy Attorney General, argued the
cause for respondent (Gurbir S. Grewal, Attorney
General, attorney; Lila B. Leonard, of counsel and on
the briefs).
The opinion of the court was delivered by
SABATINO, P.J.A.D.
Tried by a jury, defendant Siwan R. Brown was found guilty of various
drug offenses. The State's case was largely based on the seizure of over one
thousand bags of heroin and other drug paraphernalia from a residence that
defendant shared with other relatives.
Among other things, defendant argues on appeal the trial court erred in
declining the jury's request during their deliberations to have the court play
back defense counsel's closing argument for them. The court denied that
request on the basis that, as the Model Criminal Jury Charges state, the
summations of counsel do not comprise evidence. The propriety of granting
such a playback request from jurors has not been addressed before in any
published New Jersey opinion, although the issue has arisen in case law from a
few other jurisdictions.
For the reasons that follow, we hold that trial courts in our State have the
discretion in appropriate circumstances to grant jury requests to have the
closing arguments of all counsel played back or read back to them, in full or in
part. In recognizing that discretionary authority, we follow other jurisdictions
that have acknowledged the discretion of judges to allow such playbacks or
readbacks. We reject, however, defendant's contention that the denial of the
jury's playback request in his own case was unduly prejudicial and requires a
new trial.
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In the unpublished portion of this opinion, we affirm the trial court's
pretrial ruling to admit incriminating statements that defendant made to police
officers after they stopped his car for a traffic violation and smelled marijuana.
However, with the State's acquiescence, we remand this case to the trial court
to reevaluate, under the multi-factor voluntariness test of State v. King, 44 N.J.
346 (1965), whether the police obtained defendant's valid consent to search his
residence after the motor vehicle stop. We also remand this matter for the trial
court to reevaluate whether the police had a sufficient lawful basis at the time
of the motor vehicle stop to request defendant's consent to search his
residence.
I.
[At this court's direction Parts I(A), (C), (D), (E),
II, III, and V of this opinion, which concern
matters not pertinent to the playback issue in Part
IV, have been omitted from the published version
of this opinion. R. 1:36-3.]
B.
The Indictment
Based on this evidence, a Hudson County grand jury charged defendant
with multiple crimes. The charges included first-degree operation of a facility
for manufacturing heroin, N.J.S.A. 2C:35-4 (count one); second-degree
possession of heroin with intent to distribute, N.J.S.A. 2C:35-5(a)(l) and
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N.J.S.A. 2C:35-5(b)(2) (count two); third-degree possession of heroin with
intent to distribute while within 1,000 feet of school property, N.J.S.A. 2C:35 -
7 (count three); second-degree possession of heroin with intent to distribute
while within 500 feet of a public park, N.J.S.A. 2C:35-7.l (count four); third-
degree possession of heroin, N.J.S.A. 2C:35-10(a)(l) (counts five and six); and
fourth-degree possession of drug paraphernalia with intent to distribute,
N.J.S.A. 2C:36-3 (count seven).
IV.
We turn to the novel legal issue of whether the trial judge had the
authority to grant the deliberating jurors' request to have defense counsel's
closing argument played back or read back to them. This issue has not yet
been the subject of any reported opinions in our State.
A.
The chronology pertinent to this playback issue is as follows. The jurors
were read the court's charge on Friday, September 16, 2018. After some
deliberations, the jurors submitted a question to the court that day that read:
"The jury wants to confirm if [defendant] admitted and officially [sic] that he
had two bundles in his pocket. Who alleges that [defendant] said this?" The
trial judge informed the jurors that he could not answer this question, and
instead they had to rely on their own recollection of the evidence presented.
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Later that day, the jurors sent another note to the court that read: "We
don't have unanimous votes. Are we going to wait for your advice?" The
judge summoned the jurors back into the courtroom and told them that,
because it was nearly 5:00 p.m. on a Friday, he was going to discharge them
for the weekend. The judge instructed the jurors to return to court Monday
morning to continue deliberations.
On Monday, September 19, the court started the day by replacing a juror,
with no objection from counsel, with an alternate juror. The reconstituted jury
then resumed its deliberations.
After a lunch order was arranged, the deliberating jurors sent a note to
the court that read: "We would like to hear the defense summation again."
Before calling the jurors back into the courtroom, the trial judge advised the
prosecutor and defense counsel that he intended to respond to this request by
telling the jurors that "openings and summations are not evidence [and] . . .
they're going to have to rely upon their recollections."
Defense counsel urged the court to reconsider playing back the
summations, even though they are not evidence. Counsel advised that a judge
in the same vicinage had recently granted such a request, although that case
was not precedential. The State objected, arguing that summations are not
considered evidence and therefore should not be replayed.
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The judge agreed with the State's position. The jurors were brought
back into the courtroom. The judge explained to them that he would not replay
summations because they are not considered evidence. He instructed them to
rely on their recollections of the evidence to guide their decision.
The jurors also asked the court to replay the trial testimony of Officer
DeJesus. The judge agreed to do so. He informed the jury the playback of the
officer's direct and cross-examination would take about seventy minutes. The
court took a short recess to arrange the playback. Before the playback
occurred, the jurors sent back another note that said, "The jury is already
satisfied with the answer given. We decided to withdraw the other request.
The jury has reached a unanimous decision."
The jurors returned to the courtroom and issued their verdict, finding
defendant not guilty on the manufacturing charge in count one, but guilty of
the remaining charges. The judge polled the jurors individually and confirmed
their verdict was unanimous.
B.
The core issue posed to us is whether a trial judge may – as at least one
judge in the vicinage had apparently done – grant a jury's request to have all or
parts of counsel's closing arguments played or read back to the jury a second
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time. To resolve this question, we consider the important functional role that
closing arguments can have in trial practice, particularly in a jury trial.
Unlike an opening statement from trial counsel, which can only preview
what evidence is anticipated, a closing argument provides an important chance
for all counsel to highlight and analyze the proofs that were actually presented
at the trial. An effective summation can helpfully tie together for the trier of
fact the various pieces of evidence, and explain how those pieces do or do not
fit into the advocate's theory of the case.
In a criminal case such as this one, summations can supply an organized
and focused explanation of how the evidence does or does not satisfy the
elements of an offense, and how those proofs do or do not establish a
defendant's guilt beyond a reasonable doubt. Closing arguments can also
spotlight the testimony of certain witnesses, and address how cross-
examination or other evidence either impeached (or, conversely, bolstered) the
credibility of those witnesses. In essence, the summation has an important
function of providing a coherent analysis of the evidence for the jury, or for
the judge in a non-jury case.
The United States Supreme Court expounded upon these important
principles in Herring v. New York, 422 U.S. 853 (1975). In that case, the
Court struck down as unconstitutional under the Sixth Amendment a New
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York statute that gave trial judges the discretion to disallow closing arguments
of counsel in non-jury criminal cases. The Court reasoned in Herring that such
closing arguments are a vital part of trial counsel's advocacy role. We repeat
here portions of the Court's insights concerning that role:
The widespread recognition of the right of the
defense to make a closing summary of the evidence to
the trier of the facts, whether judge or jury, finds solid
support in history. In the 16th and 17th centuries,
when notions of compulsory process, confrontation,
and counsel were in their infancy, the essence of the
English criminal trial was argument between the
defendant and counsel for the Crown. Whatever other
procedural protections may have been lacking, there
was no absence of debate on the factual and legal
issues raised in a criminal case. As the rights to
compulsory process, to confrontation, and to counsel
developed, the adversary system's commitment to
argument was neither discarded nor diluted. Rather
the reform in procedure had the effect of shifting the
primary function of argument to summation of the
evidence at the close of trial, in contrast to the
"fragmented" factual argument that had been typical
of the earlier common law.
[Id. at 860-61 (emphasis added).]
As the Court further elaborated:
It can hardly be questioned that closing
argument serves to sharpen and clarify the issues for
resolution by the trier of fact in a criminal case. For it
is only after all the evidence is in that counsel for the
parties are in a position to present their respective
versions of the case as a whole. Only then can they
argue the inferences to be drawn from all the
testimony, and point out the weaknesses of their
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adversaries' positions. And for the defense, closing
argument is the last clear chance to persuade the trier
of fact that there may be reasonable doubt of the
defendant's guilt.
The very premise of our adversary system of
criminal justice is that partisan advocacy on both sides
of a case will best promote the ultimate objective that
the guilty be convicted and the innocent go free. In a
criminal trial, which is in the end basically a fact
finding process, no aspect of such advocacy could be
more important than the opportunity finally to marshal
the evidence for each side before submission of the
case to judgment.
[Id. at 862 (emphasis added) (citation omitted).]
Having emphasized these fundamental principles, the Court in Herring
acknowledged that an attorney's right to present a closing argument is not
unbounded:
This is not to say that closing arguments in a
criminal case must be uncontrolled or even
unrestrained. The presiding judge must be and is
given great latitude in controlling the duration and
limiting the scope of closing summations. He may
limit counsel to a reasonable time and may terminate
argument when continuation would be repetitive or
redundant. He may ensure that argument does not
stray unduly from the mark, or otherwise impede the
fair and orderly conduct of the trial. In all these
respects he must have broad discretion.
....
Some cases may appear to the trial judge to be
simple – open and shut – at the close of the evidence.
And surely in many such cases a closing argument
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will, in the words of Mr. Justice Jackson, be "likely to
leave [a] judge just where it found him." But just as
surely, there will be cases where closing argument
may correct a premature misjudgment and avoid an
otherwise erroneous verdict. And there is no certain
way for a trial judge to identify accurately which cases
these will be, until the judge has heard the closing
summation of counsel.
[Id. at 863 (emphasis added) (citations omitted).]
See also Thomas A. Mauet, Trial Techniques 387 (8th ed. 2010) ("Closing
arguments are the chronological and psychological culminations of a jury trial.
They are the last opportunity to communicate directly with the jury.").
New Jersey case law has recognized these general principles. See R.
1:7-1(b) (granting counsel a right to present closing statements at the end of a
case "except as may be otherwise ordered by the court"); see also State v.
Briggs, 349 N.J. Super. 496, 500-01 (App. Div. 2002) (citing Herring by
analogy in upholding defense counsel's right to present "meaningful argument"
at sentencing).
In keeping with these concepts, our trial courts have been granted the
discretion to allow counsel to present supplemental closing arguments in
appropriate circumstances, particularly where there has been a significant gap
in time between deliberations stopping and resuming, or where a legal issue
has arisen that might warrant further advocacy. See, e.g., State v. Rovito, 99
N.J. 581, 588 (1985) (finding no error when a trial court granted an additional
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ten minutes to both parties to present supplementary summations after the
court decided to charge the jury on an additional provision after the completion
of summations); see also State v. Speth, 324 N.J. Super. 471 (Law Div. 1997),
aff'd, 323 N.J. Super. 67 (App. Div. 1999) (in which the trial court permitted
both sides to supplement any summations after deliberations were underway,
in a complex case where lengthy deliberations over several weeks had been
interrupted by religious holidays and a weekend).
C.
Mindful of the well-established important function of summations, we
now turn to the principles that pertain to the process of playing back or reading
back portions of a trial, when requested by a jury.
Our courts have long recognized that juries sometimes will ask to review
testimony when they are in the midst of deliberations. The Supreme Court has
held that "[a]bsent 'some unusual circumstance,' those requests should be
granted." State v. Miller, 205 N.J. 109, 119-20 (2011) (quoting State v.
Wolf, 44 N.J. 176, 185 (1965)). The Court reasoned in Miller that "[t]he
requests are a clear sign that the evidence sought is important to the
deliberative process" and therefore, "the 'true administration of justice'
requires that judges typically accede to jury requests to review testimony."
Miller, 205 N.J. at 120.
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Comparably, judges who have reserved decision in a case sometimes
play back the recorded arguments of counsel. They do so in order to refresh or
clarify their recollections before issuing a ruling. Jurors understandably may
want a similar opportunity before rendering a verdict.
Trial courts have "broad discretion as to whether and how to conduct
read-backs and playbacks." Id. at 122; see also State v. Wilson, 165 N.J. 657,
660 (2000) ("It is well-established that 'the reading of all or part of the
testimony of one or more of the witnesses at a trial, criminal or civil, at the
specific request of the jury during their deliberations is discretionary with the
trial court.'") (quoting Wolf, 44 N.J. at 185). A party opposing the playback of
testimony has the burden to object and demonstrate prejudice. Miller, 205 N.J.
at 124; see also State v. Ortiz, 202 N.J. Super. 233, 245 (App. Div. 1985).
The trial judge in the present case rightly noted that, unlike trial
testimony, the arguments of counsel are not evidence, and should not be
treated by a jury as such. Our Model Jury Charges reinforce that principle.
See, e.g., Model Jury Charges (Criminal), "Criminal Final Charges" (rev. May
12, 2014). This does not mean, however, that jurors categorically are
prohibited from hearing once again the closing arguments of counsel on
appropriate terms and conditions – if, for some reason that arises in their
deliberations, they wish to have those arguments repeated or replayed.
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Jurors may have difficulty remembering exactly what counsel said in
summations about a hotly disputed aspect of the evidence. Jurors also may not
have heard the words of counsel in summation clearly if counsel spoke softly
or mumbled, or they might not have understood them.
In such rare circumstances when they arise, we discern no reason why a
playback or readback of closing arguments should be categorically disallowed,
provided, of course, the summations of both sides are presented. Instead, trial
courts should maintain the discretion to allow or disallow such requests, in the
interests of justice. 1
Other jurisdictions, most notably California, have recognized a trial
court's discretionary authority to allow such readbacks or playbacks. As the
California Supreme Court stated in People v. Gordon, 792 P.2d 251, 274 (Cal.
1990), "We do not doubt that a trial court's inherent authority regarding the
performance of its functions includes the power to order argument by counsel
to be reread to the jury or to be furnished to that body in written form. The
exercise of such power must be entrusted to the court’s sound discretion ."
(Emphasis added). See also People v. Pride, 833 P.2d 643, 680 (Cal. 1992)
1
By analogy, our Rules of Court have been amended to require a written copy
of the court's instructions in criminal cases to be provided to jurors in the jury
room, in recognition that jurors may have trouble remembering the precise
words of those instructions. See R. 1:8-8(b)(2).
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(noting the trial court correctly concluded that it had discretion to deny the
jury's request to playback summation and "expressed appropriate concern over
diverting the jury's attention from proper consideration of the evidence and
instructions"); People v. Sims, 853 P.2d 992, 1021 (Cal. 1993) (noting the
"trial court erred in suggesting that it lacked authority to order the reading
back of defense counsel's closing summation," but concluding the error was
not prejudicial); People v. Gurule, 51 P.3d 224, 286 (Cal. 2002) (finding no
abuse of discretion where a trial court declined a request for readback of
closing argument, particularly when defense counsel's closing arguably had
misstated the law).
New York courts likewise have recognized this principle. See, e.g.,
People v. Jones, 483 N.Y.S.2d 89, 89 (App. Div. 1984) (noting the trial court's
discretion to grant such a jury request, but finding no "improvident" exercise
of that discretion in denying the request in that case); People v. Foster, 499
N.Y.S.2d 808, 808 (App. Div. 1986) (finding no error in the court's denial of a
similar jury request).
The only jurisdiction we know of that disallows the playback or
readback of counsel's summations is Vermont, which perceived a risk of
prejudice in engaging in such a procedure where only the State's summation
was read back. State v. Fitzgerald, 449 A.2d 930, 932 (Vt. 1982) (criticizing a
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trial court for allowing a rereading of only a prosecutor's summation without
the defense summation, but finding no "clear error" requiring the jury's verdict
to be overturned).
Consistent with the practice in California and New York, we hold that
trial courts in New Jersey have the discretion to grant requests from juries to
play back or read back closing arguments. In exercising that discretion, courts
may consider such factors as: (1) whether counsel made improper or
inflammatory remarks in summation; (2) whether counsel materially misstated
the evidence; (3) whether multiple objections to the closing arguments had
been interjected, and whether they were sustained or overruled; (4) the length
and complexity of the trial; (5) whether deliberations had been lengthy or
significantly interrupted; and (6) other practical and equitable considerations.
Applying these precepts of discretion to the present case, we find no
reason to grant defendant a new trial on this basis. The trial was not
particularly lengthy. The issues were not especially complex. The jurors'
deliberations only covered portions of two days. The weekend gap between
those two days was not protracted. Although defense counsel was interrupted
in summation a few times by the prosecutor with objections, none of those
interruptions was exceptional.
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While it may have been helpful, in retrospect, for the trial court to have
accommodated the jurors' request to hear the closing arguments again, the
denial of their request was not an abuse of discretion, nor a reversible error
mandating a new trial. Notably, the jurors decided to forego a playback of
Officer DeJesus's testimony, after being told that his playback would consume
about seventy minutes. A playback of both counsel's summations presumably
would have taken considerable time, and it is possible the jurors would have
eschewed that playback as well. We will not speculate that the denial of the
playback request was prejudicial to either party.
In sum, although we agree with defendant that the trial court did possess
the inherent authority to grant the jurors' playback request, the court did not
misapply its discretion in denying it. Moreover, the denial did not manifestly
prejudice defendant, certainly not to a degree warranting a new trial. R. 2:10-
2.
Affirmed in part, and remanded in part. We do not retain jurisdiction.
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