NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0211-12T1
A-3356-13T1
STATE OF NEW JERSEY,
Plaintiff-Respondent, APPROVED FOR PUBLICATION
v. August 31, 2015
APPELLATE DIVISION
RASHON BROWN,
Defendant-Appellant.
__________________________
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MALIK Q. SMITH,
Defendant-Appellant.
___________________________
Submitted (A-0211-12) January 14, 2015;
Submitted (A-3356-13) March 25, 2015 -
Decided August 31, 2015
Before Judges Fuentes, Ashrafi and O'Connor.
On appeal from Superior Court of New Jersey,
Law Division, Union County, Indictment No.
09-04-0281.
Joseph E. Krakora, Public Defender, attorney
for appellants (Karen E. Truncale, Assistant
Deputy Public Defender, of counsel and on
the brief in A-0211-12; Monique Moyse,
Designated Council, on the brief in A-3356-
13).
Grace H. Park, Acting Union County Prosecutor,
attorney for respondent (Kimberly L. Donnelly,
Special Deputy Attorney General/Acting
Assistant Prosecutor, of counsel and on the
brief in A-0211-12; Stephen K. Kaiser,
Special Deputy Attorney General/Acting
Assistant Prosecutor, of counsel and on the
brief in A-3356-13).
Appellant in A-0211-12 filed a pro se
supplemental brief.
The opinion of the court was delivered by
FUENTES, P.J.A.D.
We consolidate these two appeals because Rashon Brown and
Malik Q. Smith were tried together before the same jury. The
jury found both defendants guilty of first degree carjacking and
other related offenses. We are compelled to reverse the jury's
verdict because the trial judge failed to remove a deliberating
juror who disclosed her racial bias to two of her fellow jurors
and to the judge.
Specifically, on the second day of deliberations, Juror 4
told Jurors 5 and 12 she was "concerned" and "nervous" because
she had seen two African-American men that morning in the
neighborhood where she lives. Juror 4 noted, "[t]hey certainly
don't live around there, and they don't hang around there."
Juror 5, who works in that area, agreed that this seemed strange
2 A-0211-12T1
because that area "mostly is Italian and White people. There
really are no Black people around there." Because both
defendants are African-American, Juror 4 feared the presence of
two African-American men in her neighborhood may have had some
kind of sinister connection to the trial.
Jurors 5 and 12 were sympathetic with juror 4's predicament
and suggested she should report her concerns to the Sheriff's
Officer who was assigned to secure the jury during
deliberations. The Sheriff's Officer informed the trial judge,
who then questioned each of the three jurors separately. The
judge decided to allow all three jurors to remain on the jury
and continue deliberating after they assured him this incident
did not have an effect on their impartiality, they would follow
the court's instructions on the law, and they would base their
verdict only on the evidence presented at trial.
On these facts, we are compelled to reverse. When Juror 4
inferred a sinister conspiratorial purpose from a facially
innocuous event, based only on the race of the participants, she
revealed a deeply-rooted, latent racial bias that required her
removal from the jury. The trial judge erred in permitting her
to remain on the jury and continue deliberating merely based on
the juror's self-serving denial of racial bias. Her initial
instinctive, subliminal association of race with criminality or
3 A-0211-12T1
wrong-doing far trumped her subsequent assurances of
impartiality. In her willingness to come forward and candidly
report her misgivings, Juror 4 also revealed her unawareness of
how engrained her racial bias was in her subconscious. This
incongruity between Juror 4's conscious acts and latent beliefs
is one of the most pernicious, unintended aspects of our jury
system.
Our pretrial jury selection screening process is designed
and intended to detect and filter out jurors who harbor views or
beliefs that are per se incompatible with the judiciary's
mission to deliver equal justice under law. However, like all
things designed by the human mind, the pretrial jury selection
process is not perfect. This requires our colleagues at the
trial level to be in a constant state of vigilance throughout a
jury trial for any signs of racial bias or other extraneous
matters that may affect a juror's impartiality. Once a juror's
latent or overt racial bias is discovered, the juror must be
removed from the jury. Thereafter, the judge must conduct a
comprehensive, fact-sensitive inquiry to determine whether the
removed juror's odious beliefs are shared by any other member of
the jury or has otherwise tainted the remaining jurors to such
an extent that a mistrial is warranted.
4 A-0211-12T1
Furthermore, and independent of this error, the trial judge
also failed to take proper measures to determine whether Jurors
5 and 12, who initially shared Juror 4's concern and advised her
to report this event to the Sheriff's Officer, harbored similar
latent racial biases. As we will discuss and explain in greater
detail, infra, the record shows the trial judge also failed to
conduct a thorough and probing examination of these two jurors.
This failure left unresolved whether Jurors 5 and 12 were
capable of discharging their duty to judge the evidence fairly
and impartially.
I
On April 2, 2009, a Union County Grand Jury returned
Indictment No. 09-04-00281, charging defendants Rashon Brown and
Malik Q. Smith with first degree carjacking, N.J.S.A. 2C:15-2,
first degree armed robbery, N.J.S.A. 2C:15-1, second degree
possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-
4a, second degree unlawful possession of a firearm, N.J.S.A.
2C:39-5b, third degree terroristic threats, N.J.S.A. 2C:12-3a
and/or N.J.S.A. 2C:12-3b, fourth degree resisting arrest,
N.J.S.A. 2C:29-2a, and fourth degree possession of a prohibited
5 A-0211-12T1
device in the form of a type of ammunition known as "hollow
nose"1 bullets, N.J.S.A. 2C:39-3f.
The same indictment charged Brown with third degree
aggravated assault by "knowingly, under circumstances
manifesting extreme indifference to the value of human life,"
pointing or displaying a firearm, at or in the direction of a
law enforcement officer, N.J.S.A. 2C:12-1b(9), third degree
hindering apprehension in connection with the investigation and
prosecution of the crimes of first degree carjacking and first
degree robbery, N.J.S.A. 2C:29-3b(4), and fourth degree
hindering apprehension in connection with the investigation and
prosecution of the crime of third degree aggravated assault,
N.J.S.A. 2C:29b(4).
Defendants were tried together over a ten-day period
commencing on February 22, 2012, and ending on March 14, 2012.
The jury found Brown guilty of all of the charges, except for
two counts. The jury acquitted Brown of second degree
aggravated assault by pointing a handgun at two police officers,
N.J.S.A. 2C:12-1b(9),2 and fourth degree possession of prohibited
1
Although the Indictment uses the term "hollow point bullet,"
N.J.S.A. 2C:39-3f describes this type of ammunition as a "hollow
nose or dum-dum bullet."
2
Smith was not indicted for this offense.
6 A-0211-12T1
ammunition under N.J.S.A. 2C:39-3f. The jury found Smith guilty
of all charges except for one. The jury acquitted Smith of the
charge of fourth degree possession of prohibited ammunition
under N.J.S.A. 2C:39-3f.
The trial court sentenced Brown to serve an aggregate term
of twenty-five years, subject to an eighty-five percent period
of parole ineligibility and five years of parole supervision as
mandated by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
The court sentenced Smith to serve an aggregate term of twenty-
three years, subject to an eighty-five percent period of parole
ineligibility and five years of parole supervision as mandated
by NERA. Brown filed his notice of appeal on September 6, 2012.
Smith filed his notice of appeal on March 18, 2014.3
Brown and Smith are represented by separate appellate
counsel and have filed separate briefs. Brown has also filed a
supplemental pro se brief raising additional arguments.
However, both defendants have raised the issue of racial bias
with respect to one juror, and demand we vacate the jury's
verdict and remand the matter for a new trial. Because the
trial court's error with respect to this one issue is of
sufficient magnitude to vitiate the legal viability of the
3
By order dated April 10, 2014, this court granted Smith's
motion to file his notice of appeal "as within time."
7 A-0211-12T1
jury's verdict as a whole, we need not and specifically do not
reach the remaining arguments raised by both defendants.
We recite the following facts from the evidence presented
at trial.
II
On December 11, 2008, at approximately 2:20 p.m., Evelyn
Arroyo-Maultsby was inside her brand new, white Infiniti that
she had parked in front of her daughter Janna's apartment
complex located on Schley Street in the Township of Hillside.
She was waiting for Janna, who had gone into her apartment to
retrieve something. While she waited, a young man tapped on her
car window and opened the door. Thinking he may have been
confused, Arroyo-Maultsby grabbed the door to close it, and
said, "this is my car." The man told her to "get out of the
car" and grabbed the door again. He then told her to get of the
car again. It was at that moment that Arroyo-Maultsby asked,
"[a]re you carjacking me[?]" The man just looked at her and
again demanded that she get out of the car.
Arroyo-Maultsby begged the young man not to do this. She
testified she told him repeatedly he was going to ruin his life.
At that point, the man opened his jacket and showed her his gun. 4
4
Based on Arroyo-Maultsby's physical demonstration while she was
on the witness stand, the trial judge confirmed for the record
(continued)
8 A-0211-12T1
Arroyo-Maultsby grabbed her pocketbook and walked out of the car
"because once I saw the gun, I knew he was serious." However,
the man told her to put the purse back in the car. Arroyo-
Maultsby testified this made her angry. Despite the potentially
dangerous circumstances, she testified:
I stomped my feet [as] if he was my kid, and
I said, you want my pocketbook too, you're
taking my car and you want my pocketbook
too. Well, then can I at least have my
license now that you're taking my car. And
then he said, yes, you could have your
license.
In response to the prosecutor's question, Arroyo-Maultsby
gave the following description of her assailant:
A. He was young. He was a Black boy, and he
had dreads, and he had his hoodie over his
head, and I still was able to see his face.
Q. Tell us about the clothing he was
wearing.
A. He was wearing black.
. . . .
Q. How close was he to you when you're
outside of the car?
A. Oh, face to face, like my nose to nose,
that close. He's just a little taller than
me, so I was like here.
Q. Okay. How tall are you?
(continued)
that when he opened his jacket, the young man had the gun on the
right side of his waist.
9 A-0211-12T1
A. I'm 5'3", almost 5'4", 5'3 1/2",
something like that.
Q. What was your observations about the
height of the person that you're speaking
with?
A. Maybe 5'8", I guess. He was taller than
me.
The witness also described her assailant as a young Black man,
with black hair, and no facial hair.
When this brief harrowing encounter ended, Arroyo-Maultsby
began walking toward the front of her daughter's building. As
she approached, she saw her daughter standing there. Arroyo-
Maultsby motioned to her daughter to remain where she was
because she was afraid of what could happen to her if she made
any kind of movement. However, Arroyo-Maultsby mouthed the
words "9-1-1" to her daughter, but Janna signaled she did not
have a cell phone. Arroyo-Maultsby then saw the young assailant
get into her car. As he backed up the vehicle, she turned
around and saw a second man walking around the car. At that
moment she realized this second man was waiting to get into the
passenger seat of her car. The two men drove away, heading
south towards Route 78.
10 A-0211-12T1
Arroyo-Maultsby called 9-1-1 immediately thereafter to
report the carjacking.5 Several police officers from the
Hillside Police Department arrived at the apartment complex
within minutes. Detective Michael D. Ricci, Detective Peter
Corvelli, Detective James Holmes, and Lieutenant Matthew Ross
left the police station and set out toward the scene of the
carjacking at Schley Street. While en route, they learned over
the police radio that the Infiniti had left the scene and was
heading towards Edwin Place in Newark. The previous week, the
Hillside Police Department recovered a carjacked vehicle near
Edwin Place.
Lieutenant Ross testified they saw a vehicle fitting the
description of the carjacked car when they reached the area of
Clinton and St. James Place. After confirming the license plate
number matched the plate number of the carjacked Infiniti, Ross
testified the police officers executed a "tactical box" of the
car, blocking its path in every direction. Ross testified the
Infiniti "rammed Detective Ricci's car that was performing the
other side of the tactical box."
Once the Infiniti was completely blocked, Ross saw "[t]he
driver immediately jump[] out of the car and had in his hand a
5
The recording of the 9-1-1 call was played to the jury without
objection from defense counsel.
11 A-0211-12T1
black semi-automatic handgun." When Ross yelled "gun," the
driver "immediately turned and bolted over a fence that was at
the house's driveway." Detective Corvelli also testified he
yelled "gun, gun," when he saw the driver run from the scene
after he stepped out of the boxed-in vehicle. Ross and Corvelli
both testified they saw the driver point the gun at them
immediately before he fled.
Ross also saw a person jump out of the passenger side of
the Infiniti. This person ran between the vehicles towards
Ross, "at which time [Ross] grabbed him by his jacket." Ross
testified that by grabbing his jacket, it caused him to "[spin]
. . . around so we were facing each other. He pulled out of my
grasp and ran east on St. James [Place]." The four police
officers at the scene immediately began to pursue both suspects
on foot. Holmes and Corvelli hopped over the fence and pursued
the driver down a driveway and into a yard; Ross and Ricci
pursued the passenger. Corvelli testified they lost sight of
the driver when he jumped over another fence adjacent to
Willoughby Street.
Ross stopped pursuing the passenger when he heard "shots
fired" when he was "[m]aybe a house . . . and a half away from
the original crime scene." Corvelli also testified to hearing
gunshots fired. When Corvelli reached Willoughby Street, he
12 A-0211-12T1
learned the gunshots had been fired by Detective Holmes.
Corvelli estimated he heard four or five gunshots. Holmes had
shot the alleged driver of the Infiniti in the foot. This man
was subsequently identified as defendant Rashon Brown.6
According to Corvelli, in the process of searching the area
for Brown, "a lady" motioned to them through a window that "she
saw an individual either hide under her porch or go into her
porch area." Corvelli yelled to Lieutenant Ross that the driver
was hiding in the porch area. Ross, who had been pursuing the
passenger down St. James Place until he heard the gunshots, ran
back towards Holmes and Corvelli. They eventually found Brown
hiding under a pile of clothes on the woman's porch. Brown was
taken to the hospital, where he identified himself as Kareem or
Kashawn Ledbetter. Ross and Corvelli identified defendant at
trial as the driver of the vehicle and the man they apprehended.
Arroyo-Maultsby learned the police had recovered her car
while she was still in front of her daughter's apartment
complex. She therefore went to the Hillside Police Department
6
Neither the State nor defendant called Detective James Holmes
as a witness in this case. The record shows that at the time
this case came for trial, Holmes was no longer a member of the
Hillside Police Department. As reflected in the colloquy that
took place in open court on February 23, 2012, Holmes was
charged and convicted of shooting his stepson before the start
of trial. Presumably, Holmes thereafter forfeited his position
as a police officer, as mandated by N.J.S.A. 2C:51-2.
13 A-0211-12T1
to submit her formal statement. Arroyo-Maultsby and her family
went to the Newark Police Department the following day to
reclaim her pocketbook and sign a form giving her consent for
the police to search the Infiniti. While she was sitting at a
detective's desk waiting to complete the consent to search form,
Arroyo-Maultsby saw the young man who had carjacked her car
being led through the room. She gave the following account of
what transpired:
A. While I was waiting for the guy, the
police officer to give me -- I believe that
was a detective -- waiting to give me the
paperwork so I could fill out, I saw a young
guy come in, and -- it was just, it was just
a coincidence. [The police officer] said
that was the boy that carjacked you.
Q. Was that person in the same room as you
in Newark?
A. Yeah, he was walking in, and I looked
right at him, and he looked right at me.
Q. And what happened when you made [sic]
that realization?
A. I broke down and told my daughter that
was the boy that carjacked me.
Q. Was your daughter at the Newark Police
Department with you?
A. Yes.
Q. Ms. Arroyo-Maultsby, is that your
daughter Janna, who was with you the day
before?
A. No.
14 A-0211-12T1
Q. A different daughter?
A. A different daughter.
Q. What is it about the person that you saw
in Newark on the 12th of [December] 2008
that you recognized from the carjacking?
A. When he came in and as he was getting
closer, I looked straight at his face. He
looked at me, and I noticed those eyes, his
skin, those dreads, and I just knew it was
him.
Q. After you turned to your daughter, did
you speak to anybody else about your
observation?
A. At first, I didn't realize if anybody
heard me. I was just talking to her, and I
just broke down.
. . . .
Q. And then did you tell detectives why you
were upset?
A. The detectives was asking [sic] me why I
was so upset, so I had to tell them.
Q. Ms. Arroyo-Maultsby, do you see the
person in court today that you saw at the
Newark Police Department on the 12th of
December, 2008?
A. It's hard to tell. He's wearing glasses
now.
Q. Ms. Arroyo-Maultsby, who is it that
you're saying it's hard to tell because he's
wearing glasses? Who are you indicating?
A. The one with the dreads. His dreads
wasn't [sic] that long.
15 A-0211-12T1
Arroyo-Maultsby eventually identified defendant Brown as
the person she saw at the Newark Police Station on December 12,
2008. He was the same person who carjacked her car the previous
day, December 11, 2008. Arroyo-Maultsby emphasized no one told
her ahead of time she would see the man who the police had
arrested and charged with carjacking her car. She was there
only to sign the consent form to permit the police to search her
car.
Lieutenant Joseph Zeiser of the Newark Police Department
testified he saw Arroyo-Maultsby sitting and talking with one of
the detectives when he noticed she became visibly upset. He
walked over and asked her whether she needed any assistance or
medical attention. According to Zeiser, she told him "that was
the guy who carjacked me yesterday." Because Zeiser was not
aware of defendant's identity at the time, he asked Arroyo-
Maultsby to clarify. She stated, "the guy who just walked in
here with the two officers."
The State also called two expert witnesses as part of its
case-in-chief. Monica Ghannam, a forensic scientist from the
Union County Prosecutor's Office, and Thomas Chung, an expert in
firearms, ballistics, and tool mark examination. Ghannam tested
three items recovered inside the Infiniti: a pair of gloves, a
black and white glove, and a red baseball hat. She excluded
16 A-0211-12T1
Brown as a DNA contributor to the red baseball hat and to one of
the gloves. Chung examined five handguns, four of which were
police service weapons, as well as four spent casings discharged
from Holmes' service weapon. The non-police firearm was a Sig
Sauer semi-automatic pistol loaded with nine live rounds of
ammunition, one of which was a hollow point bullet. Chung found
this weapon initially inoperable until he cleaned it. He
testified the weapon was fully operable.
Brown testified in his own defense. He was eighteen years
old at the time of the carjacking. He denied having had
anything to do with the carjacking. Brown testified he stopped
to speak briefly with the occupants of the white Infiniti when
he noticed the unmarked police cars and decided to leave before
they suspected him of being involved in some wrong-doing. He
witnessed the unmarked police vehicles "box-in" the white
Infiniti. Brown testified he saw two men flee from inside the
Infiniti when the police officers stepped out of their unmarked
cars with their guns drawn.
From this point, Brown said he ran toward Willoughby Street
because he saw Detective Holmes chasing him with his gun drawn.
As he jumped over a gate, Brown testified Holmes shot him in the
foot. He ran to a nearby house where the police eventually
found him. Brown denied ever having a handgun on that day.
17 A-0211-12T1
Defense counsel also called Jason Glover, a friend of defendant
Brown. Glover testified Brown was at his house earlier that
day, prior to the arrest. He testified Brown left the house
approximately half an hour before Brown was arrested. Glover
further testified that about ten minutes before discovering
Brown had been arrested, he heard shots. Glover resides on the
corner of Aldine Street and St. James Place. Glover was twenty-
four years old at the time of trial. He admitted to having
prior criminal convictions. At the time he testified, Glover
was in a halfway house as part of a four-year sentence he
received for a third degree offense.
III
In the process of canvassing the area where the carjacking
occurred, Detective Ricci located an individual who claimed to
have witnessed Smith get out of the white car. He described
Smith as having a tattoo on his left forearm. Ricci and another
detective searched the Essex County Jail's website for the name
"Malik Smith" and found four matches. Defendant Smith was one
of those four matches. Although Ricci did not see the man who
ran from the passenger side of the Infiniti, he believed Smith
was a viable candidate to include in the photo array because he
matched the height, weight, and had a left forearm tattoo.
18 A-0211-12T1
Approximately one month after Brown's arrest, Lieutenant
Ross testified that Detective Ricci told him they had a suspect
in the carjacking case. Ricci wanted Ross to look at a
photographic7 array Hillside Detective Nancy Swider had prepared
containing six photographs of individuals matching the
description of the man Ross saw run out of the Infiniti from the
passenger-side of the car on December 11, 2008. Ross testified
Ricci did not discuss with him anything about the status of the
investigation at that point. Ross also did not speak to
Detective Corvelli about any of the individuals depicted in
these photographs.
Despite Lieutenant Ross's seniority in the Hillside Police
Department and experience as a police officer, Ross testified he
told Corvelli to explain to him the process and protocol
involved in identifying an individual through this procedure:
A. Yeah, I said we're not going to cut any
corners, I'm actually a witness, not your
boss at this point, and we have to do this
the proper way. And he went through the
whole packet.
. . . .
Q. . . . Lieutenant[,] [a]fter having those
instructions given to you, did you sign and
7
Ross used the term "six-pack" to describe a photo array
containing six photographs. The prosecutor identified the array
as S-92. Ross described it as "a group of six pictures that go
inside a wooden box, and you look at the pictures."
19 A-0211-12T1
date the instruction form with Detective
Corvelli?
A. Yes, I did.
Q. And then what happened?
A. Then he gave me that six-pack wooden box
there, and I went through each photograph,
identifying photo number 3.
. . . .
Q. Now, [Lieutenant] just for the record,
you opened window one, closed window one,
similar to --
A. Opened two, closed two. Opened three.
Yes, each one you have to open, and as per
the instructions, you have to close it
because, like I said, they don't want you
comparing photos and confusing yourself or
others, whatever.
Q. And you just returned to number 3?
A. I returned to number 3 and told him it
was number 3.
Q. And what is number -- who did you tell
Corvelli number 3 was?
A. Number 3 was the guy I grabbed that got
away from me when he fled from inside of the
highjacked vehicle.
The investigating detectives did not show the photo array
to Arroyo-Maultsby or her daughter Janna because neither were
able to describe the second individual who was in the passenger
side of the car. Ghannam, the forensic scientist from the Union
County Prosecutor's Office, found she could not exclude Smith as
20 A-0211-12T1
a major DNA contributor in material she recovered from a glove
recovered from inside the Infiniti by Detective Ricci. Ghannam
also opined she could not exclude Smith as a major DNA
contributor to the red baseball hat found in the Infiniti.
Smith did not call any witnesses and did not testify in his
own defense. The court denied his pretrial motion to exclude
the photo array identification.
IV
Defendant Brown, through counsel, raises the following
arguments:
POINT I
THE COURT COMMITTED REVERSIBLE ERROR WHEN IT
PERMITTED THE VICTIM TO VIEW THE DEFENDANT'S
ARREST PHOTO DURING TRIAL IN ORDER TO ELICIT
AN IDENTIFICATION.
POINT II
THE COURT ERRED IN NOT EXCLUDING TESTIMONY
THAT THE DEFENDANT WAS APPREHENDED IN AN
AREA WHERE A CARJACKED VEHICLE HAD BEEN
RECOVERED THE PREVIOUS WEEK. (Partially
Raised Below)
POINT III
A DELIBERATING JUROR'S BELIEF, BASED SOLELY
UPON RACE, THAT TWO AFRICAN-AMERICAN MEN
WHOM SHE SAW IN HER NEIGHBORHOOD WERE
CONNECTED WITH THE TRIAL AND MIGHT BE A
THREAT TO HER WELL-BEING, WARRANTED EITHER A
MISTRIAL OR HER REMOVAL AND THE SUBSTITUTION
OF AN ALTERNATE.
21 A-0211-12T1
POINT IV
THE SENTENCE OF 25 YEARS, 85% TO BE SERVED
BEFORE PAROLE UNDER NERA, WAS MANIFESTLY
EXCESSIVE.
Brown has also filed a pro se supplemental brief in which
he raises the following additional argument points:
POINT I
DEFENDANT WAS DENIED HIS CONSTITUTIONAL
RIGHT OF DUE PROCESS TO A FAIR TRIAL WHEN
THE POLICE STAGED EVENT AND TOLD THE VICTIM
THAT DEFENDANT WAS HER ATTACKER AND UNDULY
SUGGESTED THE IDENTIFICATION.
POINT II
THE VERDICT WAS AGAINST THE WEIGHT OF THE
EVIDENCE WHEREFORE THE CONVICTION MUST BE
REVERSED AND THE INDICTMENT MUST BE
DISMISSED.
POINT III
THE DEFENDANT WAS DENIED HIS RIGHT OF A FAIR
TRIAL BY PROSECUTORIAL MISCONDUCT, WHEREFORE
THE CONVICTION MUST BE SET ASIDE AND A NEW
TRIAL AWARDED.
Smith, through counsel, raises the following points in his
appeal:
POINT I
THE TRIAL COURT DEPRIVED MR. SMITH OF HIS
RIGHTS TO DUE PROCESS AND A FAIR TRIAL BY
FAILING TO DISMISS A DELIBERATING JUROR FOR
RACIAL BIAS AND FAILING TO VOIR DIRE THE
PANEL ADEQUATELY TO GUARANTEE THAT IT WAS
FREE FROM ANY RESULTING TAINT.
22 A-0211-12T1
POINT II
PROSECUTORIAL MISCONDUCT DURING SUMMATION
DEPRIVED MR. SMITH OF HIS RIGHT TO DUE
PROCESS. (Not Raised Below)
POINT III
THE LOWER COURT ERRED IN ADMITTING EVIDENCE
OF THE IMPERMISSIBLY SUGGESTIVE OUT-OF-COURT
INDENTIFICATION OF DEFENDANT BY LT. ROSS AND
THE RESULTING TAINTED IN-COURT
IDENTIFICATION, THEREBY DENYING DEFENDANT'S
RIGHTS TO DUE PROCESS AND A FAIR TRIAL.
(U.S. CONST. AMENDS. VI, XIV; N.J. CONST.
(1947), ART. I, pars. 1 and 10.)
POINT IV
THE TRIAL COURT'S FAILURE TO CHARGE THE JURY
ON CROSS-RACIAL IDENTIFICATION DEPRIVED MR.
SMITH OF HIS RIGHT TO DUE PROCESS AND A FAIR
TRIAL. (U.S. Const. Amends. V, VI, AND XIV;
N.J. Const. (1947), Art. I, Pars. 1, 9, and
10.) (Not Raised Below)
POINT V
THE TRIAL COURT DEPRIVED MR. SMITH OF HIS
RIGHTS TO DUE PROCESS AND A FAIR TRIAL BY
FAILING TO STRIKE REPEATED TESTIMONY THAT
THE POLICE FOUND THE INFINITI IN AN AREA
WHERE THEY HAD FOUND A CARJACKED VEHICLE ONE
WEEK EARLIER.
POINT VI
THE TRAIL COURT ABUSED ITS DISCRETION BY
IMPOSING A MANIFESTLY EXCESSIVE SENTENCE.
Both defendants raised the manner in which the trial court
handled the disclosure juror 4 made during the second day of
jury deliberations as a dispositive issue in these appeals. We
23 A-0211-12T1
agree. A comprehensive recitation of the event is necessary,
before we address the legal implications of the trial judge's
decision.
At the start of the afternoon session on the second day of
jury deliberations, the trial judge addressed the attorneys to
place the following event on the record:
THE COURT: Counsel, it is now 1 o'clock. A
sheriff's officer approached me during lunch
hour and told me that Juror Number 4 spoke
to him during the lunch hour and indicated
that she saw some men outside of her house
today and was inquiring whether it might
have anything to do with this case.
Out of an overabundance of caution, my
intention is to speak to that juror and ask
her what her concerns were, what she saw,
and whether what she saw would affect her
being able to continue in her deliberations.
Now, the issue becomes, do I do this in open
court on the record, or would counsel prefer
that I do it chambers, with just counsel and
myself present, putting it onto Court Smart
so that in case there would be any reticence
to speak freely, she might feel more free to
speak in chambers. What's your preference,
counsel?
[PROSECUTOR]: I think the second option
would be more appropriate.
[BROWN DEFENSE COUNSEL]: I would prefer to
do it in chambers because I think she would
be more free to speak.
THE COURT: [Inquires from Smith's counsel.]
24 A-0211-12T1
[SMITH DEFENSE COUNSEL]: Yeah, I would agree
with that. I don't know how complicated it
is for . . . the court reporter --
THE COURT: No, we're not going to be able to
use [the court reporter].
. . . .
I would put it on Court Smart, and we will
record it separately. I'll even set your
clients up with earphones, so that they can
hear what's being said when we go into
chambers.
[SMITH DEFENSE COUNSEL]: Okay. Thank you.
(Recess)
(Voir dire in chambers conducted,
[s]tenographically, utilizing the court
reporter.)
(Juror Number 4 enters the [c]ourt's
chambers.)
THE COURT: Please come on in. Take a seat
for a minute. I don't want you to be
nervous about this, but I was speaking to my
sheriff's officer, and he tells me that you
spoke to him during the lunch break today.
JUROR NO. FOUR: Yes, coming back.
THE COURT: And you talked about something
you saw this morning.
JUROR NO. FOUR: Yes, I went out at 7 o'clock
this morning to get into my car. As soon as
I turned the ignition on, two dark Black
fellas came out of the park. My car was
facing the parking lot that we use, and a
lot of people go in and jog. But I have
never seen these gentlemen before. One was
a very, very tall man, must have been 6[']
4["], 6['] 5["]. And he was carrying
25 A-0211-12T1
sneakers, and he was hurrying down the
street. The other one was sort of an older
man, and he was light skinned, but he was
Black, you know, lighter skin.
THE COURT: Okay.
JUROR NO. FOUR: And he just stood there. He
didn't do anything. I didn't -- I thought I
saw him looking at my car, but then he went
down the street too.
THE COURT: Did you connect that with this
case in any way?
JUROR NO. FOUR: Well, I just said isn't that
coincidental, I never saw anybody in the
park. And I said to myself, you know, I
just don't want to be nervous about this,
but --
THE COURT: But would what you saw affect
your ability to continue your deliberations
in this matter?
JUROR NO. FOUR: No, but I was concerned
about my wellbeing. I don't know if, you
know, I was going to be stalked someplace,
because I mean I don't know these people.
They certainly don't live around there, and
they don't hang around there. I'm from
Union, so . . .
THE COURT: And where in Union do you live?
JUROR NO. FOUR: I live at [a particular
point of reference][8] near [the same
particular point of reference], one long
block in from [the same particular point of
reference].
8
We have decided not to disclose the particular point of
reference to protect the juror's privacy.
26 A-0211-12T1
THE COURT: And was there anything that made
you connect what you saw today with this
case other than the race?
JUROR NO. FOUR: No, not unless because it's
a case that they're both Black, and I'm on
the case. And I said, gee, that's funny,
you know. I wasn't concerned about it when I
first went on the case, but I was wondering
if they would stalk you if they're found
guilty, whatever, you know, if they would go
after any of the jurors.
THE COURT: There's some anonymity in this,
in these procedures, and in my experience,
that never happens. I'm trying to put your
mind at ease in that regard. Have you
spoken to any of your fellow jurors about
this?
JUROR NO. FOUR: I did, you know, when we
were going out to lunch. And they said,
well, if you're a little concerned, you
could mention it to the police.
THE COURT: Who did you speak to?
JUROR NO. FOUR: I told [Juror 12] and [Juror
5] and the other one. I forget what her
name is, something like . . .
THE COURT: Okay.
JUROR NO FOUR: And she said, well, if you're
concerned -- she works right next [door] to
where I live, and she said that's not a
place where they would hang out. And so she
says, if you'd feel better about it, you
could mention it to one of the police
officers here. So that's what I did.
THE COURT: But what happened to you today,
that would not affect you continuing your
deliberations in this case?
27 A-0211-12T1
JUROR NO. FOUR: Not really, I guess. You
know, not really.
THE COURT: Counsel, do you have any
questions of [Juror 4]?
. . . .
[SMITH DEFENSE COUNSEL]: Hi, [Juror 4].
JUROR NO. FOUR: Hi, how are you?
[SMITH DEFENSE COUNSEL]: Fine. Thank you.
Are you concerned at all that if the jury
comes back with a certain verdict, that
there's going to be some bad consequences
for you?
JUROR NO. FOUR: Well, that's it, that's what
I was thinking of.
[SMITH DEFENSE COUNSEL]: So, you're worried
that if --
JUROR NO. FOUR: I was thinking along that
line, when I saw that this morning.
[SMITH DEFENSE COUNSEL]: And what are you
thinking now, the same way or different?
JUROR NO. FOUR: Well, no, I had it out of my
mind. I hope it's okay when I go home and
when I go out in the morning. It's not a
place where anybody hangs out. It's nothing
like that. It's a park. People go in and
walk around and jog, and it was kind of
early. It was 7 o'clock this morning.
[SMITH DEFENSE COUNSEL]: Okay.
JUROR NO. FOUR: So I thought I would mention
it, and it would be a little off my chest.
I was just thinking, well, if that does
happen or that could happen, if they would
bother you or somebody would bother you.
28 A-0211-12T1
THE COURT: But what would happen to you in
your thoughts, would that affect your
decision making, how you might decide this
case? Would you be more inclined to vote
one way or the other as a result of that?
JUROR NO. FOUR: No, because I really think
I would vote according to the evidence. No,
I tried to be honest.
THE COURT: Yes, but you're also --
JUROR NO. FOUR: I didn't fall back on that.
THE COURT: Counsel, do [you] have any
further follow up?
[PROSECUTOR]: No, Judge.
THE COURT: And you say you spoke to [Juror
12]?
JUROR NO. FOUR: And [Juror 5].
. . . .
JUROR NO. FOUR: [Juror 5] . . . works right
next to where I live, and she knows the
park, and she said it's not a place where
anybody hangs out like that.
THE COURT: [Juror 4], I'm going to ask you
to return back to the jury room. Don't
speak to anybody else about what we spoke
about right here.
JUROR NO. FOUR: Oaky, sure. Thank you very
much, Judge.
. . . .
(Juror No. Four excused from chambers.)
[SMITH DEFENSE COUNSEL]: Where should I
start? Now we have to talk to those people.
29 A-0211-12T1
THE COURT: Yes.
. . . .
PROSECUTOR: Well, Judge, I think any time
someone sits around and hears about a
carjacking, you then become more aware of
the way of the world. You can watch an
episode of Criminal Minds and go out the
next day and think like that.
THE COURT: Counsel, I talk to jurors after
[every] trial about customer service issues,
and something that is repeatedly asked of me
is whether there's going to be retribution,
one way or the other, depending on which
side they rule. This is something that is
intrinsically in every juror's mind
potentially. So, I don't have any great
concerns about this. Are you asking that
[Juror 4] be excused?
[SMITH DEFENSE COUNSEL]: I'm not sure. I
mean she seems like a little bit shaken
about it. So, I know she's saying it's not
affecting her deliberation, but she just
seems troubled by it. But I mean, you know,
based on -- I mean I'm thinking about the
comments that you and [the Prosecutor] made,
and I don't know what [Brown's Counsel]
thinks, but if everyone is satisfied that
she's comfortable.
THE COURT: I think she said she could decide
the case based upon the evidence. But she
does express, you know, her safety is a
matter of concern to her, but there's
nothing that she really connects with this
case.
[BROWN DEFENSE COUNSEL]: . . . I'm not
asking to remove her.
THE COURT: But we will continue the voir
dire. All right.
30 A-0211-12T1
[BROWN DEFENSE COUNSEL]: Yeah.
(Juror No. Three enters the [c]ourt's
chambers)
. . . .
THE COURT: [Addressing Juror 3] did you have
a conversation today with [Juror 4]?
JUROR NO. THREE: The older lady?
THE COURT: Yeah.
JUROR NO. THREE: About what she saw? Yes,
yes, we talked about it.
THE COURT: And she told you what she saw,
that she saw two Black men outside her home
this morning?
JUROR NO. THREE: Actually, the conversation
wasn't directly with me. She was talking
with [Juror 12], another juror, but I was
right next to them.
THE COURT: And would what she said affect
you in any way in your continuing to
deliberate in this matter?
JUROR NO. THREE: No.
THE COURT: Counsel have any follow up with
[Juror 3]?
[SMITH DEFENSE COUNSEL]: No, Judge.
[BROWN DEFENSE COUNSEL]: No.
THE COURT: Is she oaky though? I worry
about her. She's okay? Did she do anything
else than express what she saw that would
cause you concern for her ability to
continue?
31 A-0211-12T1
JUROR NO. THREE: She was very concerned, and
then when we walked, I was standing behind
her, and I told her not to worry about it, I
sincerely don't think she needed to be
worried that it has anything to do with this
case. I think she needed to be assured.
She said, are you sure, are you sure. I
said I'm pretty sure.
THE COURT: Thank you [Juror 3].
(Juror No. Three excused from chambers.
Juror No. Five enters the [c]ourt's
Chambers.)
THE COURT: [Addressing Juror 5] were you
present at lunch when [Juror 4], Juror
Number 4, was having a conversation with
another one of your fellow jurors?
JUROR NO. FIVE: Yes.
THE COURT: And she indicated that she had
seen something this morning.
JUROR NO. FIVE: She was talking to me.
THE COURT: She was talking to you.
JUROR NO. FIVE: And I said, let the officer
know about it. What she said is that she
saw two black young men in the park where
she lives, at around where she lives. I
know the area because I work near where she
lives.
THE COURT: You work nearby?
JUROR NO. FIVE: Nearby. The area is just
for seniors, and it has like three
complexes, and in the middle is like a park,
and on the other side is where the YMCA is
at. It sounded a little strange perhaps.
This area mostly is Italian and White
people. There really are no Black people
around there. So, she was concerned about
32 A-0211-12T1
it, and I advised her to let the police
officer know about this. She was kind of
nervous.
THE COURT: And what she expressed to you,
would that affect you in continuing your
deliberations?
JUROR NO. FIVE: No, not at all.
THE COURT: Not at all. Counsel have any
questions of [Juror 5]?
[PROSECUTOR]: No, Judge.
[BROWN DEFENSE COUNSEL]: No.
THE COURT: Thank you, [Juror 5], I'm going
to ask you . . . to go back to the jury room
and don't talk to your fellow jurors about
what we talked about.
JUROR NO. FIVE: Okay.
. . . .
[SMITH DEFENSE COUNSEL]: Judge, can we ask
this person if they think anybody else heard
it, if they have knowledge?
THE COURT: Yeah.
(Juror No. 12 enters the [c]ourt's
Chambers.)
THE COURT: Come on in. Hi . . . Please sit.
[Addressing Juror 12], [Juror 4] spoke to
you on lunch hour about something she saw
this morning?
JUROR NO. TWELVE: Yes.
THE COURT: And she expressed to you some
concern about what she saw. What she told
you, would that affect your ability to
continue on this jury?
33 A-0211-12T1
JUROR NO. TWELVE: No.
THE COURT: Did she appear to be reassured
when she mentioned it to the sheriff's
officer about what she saw? Has she
expressed - - or is she in any way acting as
if you don't think she's going to be able to
continue in her deliberations?
JUROR NO. TWELVE: I think she'll be able to
continue. I just think she was shook up a
little bit about it.
THE COURT: Was there anyone else present or
around? She told us that she was speaking -
- I think she said to you, and then [Juror
5] told her, advised her and that [Juror 3]
was nearby.
JUROR NO. TWELVE: Yeah, that was it.
THE COURT: Was there anybody else nearby
that could have heard it? Counsel have any
follow up with [Juror 12]?
[BROWN DEFENSE COUNSEL]: No.
[SMITH DEFENSE COUNSEL]: No.
[PROSECUTOR]: No.
[(Emphasis added).]
The trial judge excused Juror 12 and gave her the same
admonition he had given the other three jurors, to refrain from
discussing what had transpired with the remaining members of the
jury. The record indicates there was a request by the jury for
a read back of some testimony. After this concluded, Brown's
counsel addressed the judge in open court, but outside the
presence of the jury, and moved for a mistrial. Brown's counsel
34 A-0211-12T1
indicated his motion was based on Juror 4's comments, together
with the comments made by Juror 5. Alternatively, Brown's
counsel asked the court to remove Jurors 4 and 5, and replace
them with the two alternates. Smith's counsel joined in both
motions. Smith's counsel made the following argument in support
of her application:
I'm concerned - - and I'm also speaking on
my client's behalf after speaking to him.
I'm concerned about [Juror 5], some of her
comments, because it seems like she thought
it was very strange as well, and she's not
used to seeing Black people in that area.
And she's the one, in fact, that told [Juror
4] to say something to the officers. So,
I'm just concerned about how, either
consciously or subconsciously, that would
affect them. So, I would ask that they both
be removed.
The prosecutor opposed defendants' applications for either
a mistrial or for the removal of Jurors 4 and 5. The prosecutor
maintained that Juror 4 specifically declared that the
experience she had had earlier that same day did not affect her
ability to remain impartial. The prosecutor noted that in "the
realities of life and of jury duty . . . you hear facts that,
for many people in this box, are not part and parcel of their
everyday life."
The trial judge stated, "Prosecutor, I concur with you."
The judge again stated how it is his practice to speak to jurors
at the end of trials to discuss
35 A-0211-12T1
customer service issues, things that we
could do better in order to make their jobs
easier.
. . . .
But the thing that always rings true is that
someone always asks about juror safety and
whether there's potential retaliation for
verdicts, either by the State or by the
defense, based upon their findings, and we
always try to reassure them. I know that
one of the issues with the jury selection
method, I always try to tell my jurors to be
general in talking about - - for instance,
we don't . . . want to know what specific
job they work for, but we're looking for
general, generic information. We don't want
to know where they live. We want to know
who lives with them.
So, I think that juror safety, juror
anonymity to one extent is one of the
growing concerns in the country in terms of
jury selection.
[Juror 4] expressed that she saw two people
outside of her home today. She didn't
connect it in any way whatsoever with this
case, except that the two individuals she
saw were African-American and that the two
defendants on trial are African-American.
She made the connection in her mind, and she
said she was somewhat concerned about it.
[Juror 5] indicates that she works nearby
and that she somewhat fed into that concern
by saying it might be unusual for there to
be two African-Americans in that
neighborhood, but speak to the sheriff's
officer if you have any concerns.
Both individuals indicated that what was
said between them, what was observed by
[Juror 4] would have no part, would play no
role in their continued deliberations.
36 A-0211-12T1
[(Emphasis added).]
Brown's counsel emphasized that the facts showed Juror 4
saw a possible nefarious connection between the two African-
American men in a Caucasian neighborhood and her service as a
juror in a case involving two African-American defendants. The
judge rejected counsel's argument, stating: "We cannot deal at a
jury selection level with subconscious behavior. We tell the
jury that we understand that we expect to some extent people
have developed certain prejudices, some fixed ways of thinking .
. . The fact that they might does not exclude them from service
as jurors."
At the conclusion of the read back of certain testimony,
the judge addressed the jury in open court:
I want to make one comment, and I've already
ruled on this, but in terms of creating the
record, there's been an expression that
[Juror 4] -- and also [Juror 5] to a certain
extent -- expressed some racial
consciousness and potential racism by their
comments.
However, what they both said was that the
circumstances were unusual, that the area in
which they were, it would be unusual for
someone who was Black to be in that area. I
can't say -- I can't say that myself. I
don't know whether any counsel can say it,
but these individuals said that that was
unusual. And [Juror 4] expressed some
initial concerns with it. I don't think
that that's even an expression of racism.
So, your application is denied.
37 A-0211-12T1
[(Emphasis added).]
Approximately one hour later, the jury returned its verdict
findings defendants guilty on most of the charges reflected in
the verdict sheet.
V
Our Supreme Court has emphatically stated that "[a]
defendant's right to be tried before an impartial jury is one of
the most basic guarantees of a fair trial." State v. Loftin,
191 N.J. 172, 187 (2007); State v. Tindell, 417 N.J. Super. 530,
562-563 (App. Div. 2011). The Sixth Amendment of the United
States Constitution and Article I, paragraph 10 of the New
Jersey Constitution guarantee criminal defendants "the right to
. . . trial by an impartial jury." U.S. Const. amends VI, XIV;
N.J. Const. art. I, ΒΆ 10. "That constitutional privilege
includes the right to have the jury decide the case based solely
on the evidence presented at trial, free from the taint of
outside influences and extraneous matters." State v. R.D., 169
N.J. 551, 557 (2001).
The Court has stressed that jurors must be "as nearly
impartial 'as the lot of humanity will admit.'" State v.
Singletary, 80 N.J. 55, 62 (1979) (quoting State v. Jackson, 43
N.J. 148, 158 (1964), cert. denied sub nom. Ravenell v. New
Jersey, 379 U.S. 982, 85 S. Ct. 690, 13 L. Ed. 2d 572 (1965)).
38 A-0211-12T1
"A trial is poisoned at its inception if the jurors deciding the
case cannot review the evidence dispassionately, through the
light of reason." State v. Fortin, 178 N.J. 540, 575 (2004).
For this reason, "all doubts about a juror's integrity or
ability to be fair should be resolved in favor of removing the
juror from the panel." Loftin, supra, 191 N.J. at 187.
A trial court has discretion to remove and replace a
deliberating juror "because of [the juror's] illness or other
inability to continue." R. 1:8-2(d)(1). Although seemingly
vague and broad, the "inability to continue" standard must be
narrowly construed and sparingly applied. State v. Jenkins, 182
N.J., 112, 124 (2004); State v. Hightower, 146 N.J. 239, 254
(1996). "Because juror substitution poses a clear potential for
prejudicing the integrity of the jury's deliberative process, it
should be invoked only as a last resort to avoid the deplorable
waste of time, effort, money, and judicial resources inherent in
a mistrial." Hightower, supra, 146 N.J. at 254 (citing State v.
Lipsky, 164 N.J. Super. 39, 43 (App. Div. 1978)).
The reason behind a juror's inability to continue must be
"personal and unrelated to the juror's interaction with the
other jury members." State v. Valenzuela, 136 N.J. 458, 473
(1994).
Thus a juror cannot be replaced by an
alternate during deliberations merely
39 A-0211-12T1
because his position is at odds with the
other jurors, or because a party perceives
or receives information that the juror may
be unfavorable to that party, or because the
juror is unable to come to a decision by the
time all the other jurors have reached
theirs.
[Pressler & Verniero, Current N.J. Court
Rules, comment 4.3.2 on R. 1:8-2 (2014)
(citations omitted).]
Courts have sanctioned the removal and replacement of
deliberating jurors under the "inability to continue" standard
in a variety of different circumstances. See, e.g., State v.
Williams, 171 N.J. 151, 167 (2002) (juror complained of
financial hardship); State v. Miller, 76 N.J. 392, 401-02 (1978)
(juror was too nervous and could not render a fair verdict);
State v. Trent, 157 N.J. Super. 231, 239-40 (App. Div. 1978)
(juror under emotional distress because defendant reminded her
of her son), rev'd on other grounds, 79 N.J. 251 (1979).
Although a deliberating juror's bias or prejudice falls
within the "inability to continue" standard, the court, in
opting for substitution rather than a mistrial, must ensure, by
appropriate voir dire, that the other jurors were not tainted by
the removed juror. Pressler & Verniero, Current N.J. Court
Rules, comment 4.3.2 on R. 1:8-2 (2014). "When a jury is
exposed to extraneous information after deliberations have
begun, a mistral will almost always be required." Hightower,
40 A-0211-12T1
supra, 146 N.J. at 255, 264 (court erred in removing a juror and
not granting a mistrial where the juror informed the others that
the victim had children). See also State v. Adams, 320 N.J.
Super. 360, 365-69 (App. Div.) (court erred in removing a juror
and not granting a mistrial where the juror told the others that
police often beat accused criminals), certif. denied, 161 N.J.
333 (1999).
The decision to grant a new trial based on jury taint
resides in the discretion of the trial court. But, if juror
misconduct or bias has a tendency to influence the jury, a new
trial should be granted without further inquiry as to its actual
effect. R.D., supra, 169 N.J. at 558 (citing Hightower, supra,
146 N.J. at 266-67; Panko v. Flintkote Co., 7 N.J. 55, 61
(1951)). "The test is not whether the irregular matter actually
influenced the result, but whether it had the capacity of doing
so." Panko, supra, 7 N.J. at 61.
"A new trial, however, is not necessary in every instance
where it appears an individual juror has been exposed to outside
influences." R.D., supra, 169 N.J. at 559. In deciding whether
to grant a new trial, a trial court must consider:
the gravity of the extraneous information in
relation to the case, the demeanor and
credibility of the juror or jurors who were
exposed to the extraneous information, and
the overall impact of the matter on the
fairness of the proceedings. The inquiry
41 A-0211-12T1
about whether extraneous information had the
capacity to influence the result of the jury
requires an examination of whether there was
at least an opportunity for the extraneous
information to reach the remaining jurors
when that extraneous information is
knowledge unique to one juror who is excused
mid-trial.
[Ibid.]
When "it becomes apparent that a juror may have been
exposed to extraneous information, the trial court must act
swiftly to overcome any potential bias and to expose factors
impinging on the juror's impartiality." Id. at 557-58 (citing
State v. Bey, 112 N.J. 45, 83-84 (1988)).
The court is obliged to interrogate the
juror, in the presence of counsel, to
determine if there is a taint; if so, the
inquiry must expand to determine whether any
other jurors have been tainted thereby. The
trial court must then determine whether the
trial may proceed after excusing the tainted
juror or jurors, or whether a mistrial is
necessary.
[Id. at 558 (citing Pressler, Current N.J.
Court Rules, comment 2 on R. 1:16-1
(2000)).]
An appellate court reviews the trial court's jury-related
decisions under the abuse of discretion standard. Id. at 559.
This standard respects the trial court's unique perspective and
the traditional deference we accord to trial courts in
"exercising control over matters pertaining to the jury." Id.
at 559-60. However, "an appellate court is not bound by a
42 A-0211-12T1
determination when the 'particular circumstances present such a
strong likelihood of prejudice that, as a matter of law,' the
juror should have been removed." Loftin, supra, 191 N.J. at 192
(quoting State v. Biegenwald, 106 N.J. 13, 91 (1987)).
Here, the trial judge abused his discretion in failing to
remove Juror 4. The record is replete with unambiguous evidence
revealing Juror 4's racial bias. In her own words, she revealed
how she immediately construed the presence of two African
American men in her all white neighborhood as a menacing sign of
possible retaliation by defendants, merely because they were
also African American men. Even more disturbing, however, is
the trial judge's reaction to Juror 4's revelations. The judge
was not only oblivious to the juror's unmistakable racial bias,
but he actually endorsed the juror's misguided apprehensions.
The judge made his point of view on the subject of racial bias
and prejudice clear when he denied Brown's defense counsel's
motion to remove Jurors 4 and 5. "[W]e expect to some extent
people have developed certain prejudices, some fixed ways of
thinking."
The judge's impromptu, sua sponte "instructions" to the
jury, made soon after the judge had finished interviewing the
four jurors in his chambers, dispels any lingering doubt an
43 A-0211-12T1
objective viewer could have about the judge's willingness to
accept racial bias in a juror as an unavoidable reality of life.
I want to make one comment, and I've already
ruled on this, but in terms of creating the
record, there's been an expression by [Juror
4] -- and also [Juror 5] to a certain extent
- - expressed some racial consciousness and
potential racism by their comments.
However, what they both said was that the
circumstances were unusual, that the area in
which they were, it would be unusual for
someone who was Black to be in that area. I
can't say -- I can't say that myself. I
don't know whether any counsel can say it,
but these individuals said that that was
unusual. And [Juror 4] expressed some
initial concerns with it. I don't think
that that's even an expression of racism.
[(Emphasis added).]
These remarks coming from a sitting judge in a criminal
trial are plainly inappropriate under any circumstances, but
especially when they are uttered in a trial involving two
African American defendants. A juror's expression of "racial
consciousness and potential racism" must be immediately
repudiated, and the juror must be removed from the jury.
Thereafter, the trial judge must conduct a thorough,
comprehensive, and probing investigation to determine what
influence the juror's noxious sentiments had on other jurors.
Here, the judge's voir dire of Jurors 3, 5, and 12 was
completely inadequate and fell far short of what was required
44 A-0211-12T1
under the circumstances. The judge did not ask any open ended
questions. He began each of the interviews with these jurors
with a variation of the statement, "Juror 4 expressed to you
some concern about what she saw." The judge did not ask the
jurors to recite what Juror 4 had told them. His "examination"
of these jurors seemed designed to confirm his predisposition to
find Juror 4's irrational, racist fears after seeing two African
American men in her all white neighborhood as a completely
justified and understandable reaction on her part. The judge
accepted as sound and prudent Juror 5's advice to Juror 4 to
report to a Sheriff's Officer that she had seen two African
American men that morning in the park located outside her
residence.
It is clear the judge found Juror 4's fears in this respect
understandable. Indeed, the judge noted several times on the
record his practice of speaking to jurors at the conclusion of
trials and conduct his own version of a "customer service"
interview. The judge highlighted that in the course of
conducting these post-trial interviews, "juror safety and . . .
[the] potential retaliation for verdicts" was a key and
consistent concern expressed by most of the jurors he has
interviewed. This statement reveals, with indisputable clarity,
the judge's profound misapprehension of the significance of the
45 A-0211-12T1
sentiments expressed by Juror 4 and 5. The judge considered the
jurors' expressions of racial bias as legitimate fears to be
addressed systemically by providing more security and ensuring
the anonymity of the jurors. These views are utterly
irreconcilable with one of the core principles of this State's
judiciary, the delivery of equal justice under law to all of our
citizens.
We have taken the time and effort to describe the record in
these two consolidated appeals in great detail, because we
wanted to reveal the profound, highly prejudicial errors that
infected this trial, and by so doing, provide guidance to our
colleagues at the trial level on how to address these highly
contentious and profound issues when they arise. The essence of
racial profiling is to associate criminality or wrongdoing as an
aspect of a person's race or ethnic background. We have
unequivocally condemned this specious and hateful practice when
it was used by the law enforcement community in this State to
target minority motorists as they travelled our highways. We
must adopt the same policy of zero tolerance when a version of
such an odious concept contaminates, to any degree, the jury's
deliberative process. Racial bias is repugnant to any notion of
fairness or impartiality; it is the antithesis of justice under
the law.
46 A-0211-12T1
Under these circumstances, we are compelled to reverse and
vacate the convictions of both defendants Brown and Smith and
remand the matter for retrial. Because this outcome is
dispositive of this appeal, we do not address the remaining
arguments raised by both defendants.
Reversed and remanded. We do not retain jurisdiction.
47 A-0211-12T1
_______________________________
ASHRAFI, J.A.D., concurring in the result.
I concur in the court's judgment. During deliberations, a
juror expressed to other jurors and the judge an unjustified
fear of retaliation by defendants because of an event
unconnected to the trial and an invidious racial stereotype she
harbored. The impartiality of the jury was thus tainted.
Defendants' motion for a mistrial should have been granted.