State of New Jersey v. James Gleaton

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3458-13T1

STATE OF NEW JERSEY, APPROVED FOR PUBLICATION

Plaintiff-Respondent, August 9, 2016

v. APPELLATE DIVISION

JAMES GLEATON, a/k/a WALTER E. GLEATON,
WALTER MASON,

Defendant-Appellant.
__________________________________________

Submitted December 2, 2015 – Decided August 9, 2016

Before Judges Fuentes, Koblitz and Gilson.

On appeal from Superior Court of New Jersey,
Law Division, Mercer County, Indictment No.
10-12-1314.

Joseph E. Krakora, Public Defender, attorney
for appellant (Kevin G. Byrnes, Designated
Counsel, of counsel and on the brief).

Angelo J. Onofri, Acting Mercer County
Prosecutor, attorney for respondent (Amanda
E. Nini, Special Deputy Attorney General/
Acting Assistant Prosecutor, of counsel and
on the brief).

Appellant filed a pro se supplemental brief.

The opinion of the court was delivered by

FUENTES, P.J.A.D.

Defendant James Gleaton was tried before a jury and

convicted of first degree possession of cocaine with intent to
distribute, N.J.S.A. 2C:35-5a(1); first degree distribution of

cocaine, N.J.S.A. 2C:35-5a(1); third degree possession of

cocaine, N.J.S.A. 2C:35-10a(1); and fourth degree maintaining a

narcotics nuisance, N.J.S.A. 24:21-21a(6). At sentencing, the

trial judge merged the first degree distribution of cocaine

conviction with the convictions for first degree possession of

cocaine with intent to distribute and third degree possession of

cocaine and sentenced defendant to a term of sixteen years with

a mandatory eight-year period of parole ineligibility. On the

remaining fourth degree conviction for maintaining a narcotics

nuisance, the judge sentenced defendant to a term of fourteen

months to run concurrent with the sixteen-year term.

This was the second time defendant stood trial on these

charges. The first trial held in March 2013 ended in a mistrial

when the jury was unable to reach a unanimous verdict on any of

the charges. The second trial began on Thursday, October 24,

2013. The State rested its case on the afternoon of the

following day, Friday, October 25, 2013. Defendant was the only

witness called for the defense when the trial resumed on Monday,

October 28, 2013. The jury began deliberating on Tuesday

morning, October 29, 2013. After three days of deliberations

mired by accusations of incivility against the foreperson by a

group of nine jurors, the trial judge decided to strip juror

2 A-3458-13T1
number 1 of her position as foreperson and of the commensurate

responsibilities attendant thereto. Soon thereafter the jury

returned a verdict finding defendant guilty on all of the

charges.

In this appeal, defendant argues the following events

prejudiced his right to a fair trial and warrants the reversal

of his conviction: (1) the jury's deliberations were tainted by

the disorder caused by a conflict between the foreperson and a

group of nine jurors led by juror number 10; (2) a juror's

personal account of an alleged incident of retaliation by drug

dealers unrelated to this case undermined the jury's ability to

impartially review the evidence presented at trial; (3) a

statement made by a law enforcement witness implied defendant

was the head of a narcotics "network"; (4) the trial judge's

evidential rulings violated defendant's right to present a

complete defense; (5) the cumulative effect of these errors

warrant the reversal of defendant's conviction; and (6) the

sentence imposed by the court was excessive.

After reviewing the record developed at trial, we are

compelled to vacate the jury's verdict and remand the matter for

a new trial. The trial judge's well-intended efforts to

ameliorate the acrimonious environment created by a conflict

between the foreperson and nine other deliberating jurors unduly

3 A-3458-13T1
interfered with the jury's autonomous role as the judges of the

facts. The record shows the trial judge was driven by an

overriding concern for creating a deliberative environment

capable of allowing the jury to return a unanimous verdict. As

a consequence, the judge viewed a juror's position against

further deliberations not as a legitimate stance, but as an

unreasonable impediment to the goal of reaching a unanimous

verdict. Because of "the weighty role that the judge plays in

the dynamics of the courtroom," State v. Figueroa, 190 N.J. 219,

237-38 (2007), a trial judge must guard against showing any bias

against dissent and in favor of unanimity. A jury's verdict

cannot be the product of coercion to any degree. Ibid.

Here, the trial judge's response to a note he received from

the foreperson on the second day of deliberations, announcing

the jury had reached "an impasse" based on an eleven to one

split in favor of continuing to deliberate, constituted

reversible error because it was not carefully calibrated to

avoid creating the impression that the court had taken sides in

favor of unanimity and against the one holdout juror. The trial

judge compounded this error in the manner he responded to a

group of nine jurors' complaints about the foreperson's

leadership style.

4 A-3458-13T1
 The judge's decision to allow these nine jurors to elect a

"spokesperson" to convey their collective grievances exacerbated

the factionalism developing within the jury and improperly

elevated the status of the spokesperson within the jury. Even

more troubling was the judge's decision to allow the

"spokesperson" to discuss these matters with the judge and

counsel privately at sidebar, thereby excluding the eight jurors

he was elected to represent. This approach was needlessly

vulnerable to the personal bias of the "spokesperson" and

ultimately provided the court with an incomplete and potentially

skewed account of the foreperson's alleged shortcomings.

More importantly still, the judge accepted the veracity and

accuracy of the spokesperson's account to characterize the

foreperson as an "obstructionist" and consequently unsuitable to

continue to serve in this capacity. As we will explain in

greater detail, the judge's reliance on our decision in State v.

Rodriguez, 254 N.J. Super. 339 (App. Div. 1992), as authority to

support taking the extraordinary step of replacing juror number

1 as foreperson, was misplaced. Although we are satisfied the

judge's decision was well-intended, it nevertheless had the

capacity of being perceived by the foreperson as a retaliatory

act intended to coerce her to change her stance in the

deliberations to produce a unanimous verdict. The judge's bias

5 A-3458-13T1
in favor of unanimity was impermissibly coercive. Figueroa,

supra, 190 N.J. at 236.

I

The State's case against defendant was primarily based on

the testimony of two witnesses, Trenton Police Detective Ronald

Pope and defendant's friend, turned confidential informant, N.A.

Pope arranged to make a controlled purchase of cocaine from

defendant. N.A. agreed to become a confidential informant after

he was arrested by the Trenton Police Vice Enforcement Unit and

charged with unlawful possession of weapons and narcotics.

Detective Pope was the first witness called by the State.

He began his career as a sheriff's officer in the Mercer County

Sheriff's Office in 1996, before transferring to the Trenton

Police Department two-and-a-half years later. At the time of

defendant's arrest Pope was employed as a Detective by the

Trenton Police Department, working as a full-time task force

officer with the United States Drug Enforcement Administration

(DEA). He described to the jury the role N.A. played as a

confidential informant in the investigation that led to

defendant's arrest. Pope testified that "no promises" are made

to informants in exchange for their cooperation. The prosecutor

is the only one who has the authority to enter into an agreement

with an informant related to the charges they are facing and the

6 A-3458-13T1
terms of any sentence recommendation to the court. In this

case, the charges N.A. was facing in State Superior Court were

dismissed and federal narcotics and weapons possession charges

were filed against him in the United States District Court for

New Jersey.

Pope testified that based on his discussions with N.A., the

DEA Task Force decided to initiate a long term investigation to

focus on not only defendant, "but we also wanted to focus on his

associates as well as his whole network." This prompted an

immediate objection from defense counsel. When the trial judge

asked defense counsel whether he wanted to discuss the matter at

sidebar, counsel responded: "I don't think so, Judge."

Thereafter the trial judge sustained the objection and

instructed the jury to disregard this part of Pope's testimony

as "irrelevant." The judge also struck from the record Pope's

comments concerning defendant's "associates" and "network."

Based on information provided by N.A., Pope and his fellow

task force members began their "long term investigation" of

defendant's alleged distribution of illicit narcotics by

telephoning defendant to arrange a place to meet to discuss the

purchase of a quantity of cocaine. On September 24, 2009, at

approximately 11:00 a.m., Pope met with N.A. in the parking lot

of Freddie's Tavern in Ewing Township. Pope directed N.A. to

7 A-3458-13T1
call defendant on the phone using a digital recorder to record

the conversation. The first time N.A. called, defendant did not

answer and the call was redirected to voicemail.

According to Pope, N.A. told him this was normal behavior

and immediately called defendant a second time. That time,

defendant answered. Pope testified the conversation between

N.A. and defendant was recorded. The jury was given a copy of

the transcript of the conversation. During this initial

conversation, N.A. and defendant agreed to meet between 5:00

p.m. and 6:00 p.m. that same day.

The State's case centered on the "controlled buy" that took

place on September 24, 2009. As Pope explained, law enforcement

officers used $5700 of government funds to buy the illicit

narcotics. Pope testified that in the course of the recorded

conversation between N.A. and defendant, "it was determined

through [N.A.] that the going price would be approximately $37

per gram and we wanted to buy 150 grams." Law enforcement

agents monitored the exchange of the funds with defendant

utilizing a digital audio recorder and an audio transmitter.

They wanted "to establish stationary surveillance on the target

residence" while other officers were in their cars and able to

respond if necessary.

8 A-3458-13T1
 Before the jury heard the audio recording, the trial judge

gave a cautionary instruction concerning the quality of the

recording, the possible distortions or interference caused by

ambient noise, as well as an individual person's manner of

speaking. The judge emphasized to the jury that they were to

use the transcripts only as a guide because "[t]he audio

recordings themselves [were] the primary evidence." Each juror

should therefore resolve any discrepancy between the

transcription of the conversation and the audio recording in

favor of the actual recording.1

Pope and DEA Special Agent Eric Brown met with N.A. at

approximately 5:15 p.m. at Freddie's Tavern in Ewing Township.

N.A. placed another call to defendant to solidify their plan.

The two men agreed to meet at defendant's residence. Trenton

Police Officer David Ordille established a stationary location

from which to monitor defendant's residence. Prior to sending

N.A. to meet with defendant, the officers searched N.A. to

confirm he did not have any money, weapons, or contraband on his

person or motorcycle. They outfitted N.A. with both an audio

digital recorder and an audio transmitter. According to Pope,

1
The two compact discs that contained the recording of these
interactions were moved into evidence by the State without
objection by defense counsel.

9 A-3458-13T1
the audio digital recorder is "very small" and was intended to

be concealed on N.A.'s person. Unfortunately, the officers

subsequently discovered that the recorder "did not work."

However, the transmitter was able to transmit the live

interactions between N.A. and defendant. Pope was unable to

explain why the digital recorder failed to work.

Officer Ordille was stationed in the woods approximately

100 feet from defendant's residence and twenty feet from the

property line. The police officers did not lose sight of N.A.

during the time he drove his motorcycle from the place where he

originally met Pope and Brown to when he arrived at defendant's

residence. Ordille saw defendant walk up to the residence and

sit on the front porch. He also saw N.A. arrive on his

motorcycle, park, and get off the bike. Although Ordille saw

defendant walk over to N.A. and engage in conversation with him

for a few minutes, he could not hear what was said. Following

the conversation, the two men entered the front door of the

residence. From his vantage point, Ordille could not see

defendant or N.A. while they were in the residence.

After approximately ten minutes, N.A. came out of the

residence through the front door, got back on his motorcycle,

and drove away. Ordille notified Pope and Brown that N.A. had

left defendant's residence. This was intended to signal them to

10 A-3458-13T1
continue to surveil N.A. from this point forward. Pope and

Brown followed N.A. back to the prearranged location at

Freddie's Tavern, without losing sight of him at any point along

the way.

Upon arriving at the Tavern, the law enforcement agents

retrieved the transmitters from N.A.'s person, collected the

cocaine he had purchased from defendant, and searched him and

the motorcycle once again for any additional contraband or

money. The cocaine N.A. purchased from defendant was in a

closed, clear plastic bag. It was subsequently tested and

identified as 149.8 grams, or 5.284 ounces, of cocaine.

Defendant stipulated the substance tested was cocaine in a

written statement the judge read to the jury.

On October 6, 2010, over a year after N.A. made the

controlled buy from defendant, the police executed a search

warrant to search defendant's residence. After conducting an

exhaustive search, the officers were unable to find any

contraband on the premises. The police nevertheless arrested

defendant that day based on the evidence recovered from the

controlled buy. At a pretrial hearing, the trial judge barred

defense counsel from informing the jury of the outcome of the

search of defendant's residence on October 6, 2010.

11 A-3458-13T1
 The State called Brown and Ordille to corroborate and

expand upon Pope's testimony. The State called N.A. as its

final witness. N.A. expounded upon his role in bringing

defendant to the State's attention in consideration for a more

lenient sentence on his pending charges. As noted earlier, N.A.

was originally arrested on July 9, 2009, by the Trenton Police

Department. In an effort to help himself, he agreed to become a

confidential informant and assist state law enforcement officers

in conducting an investigation into defendant's alleged narcotic

activities.

On October 25, 2013, the day N.A. was scheduled to testify

at trial, the judge placed the following on the record:

[A]s you know there were two applications
made to the [c]ourt late yesterday after the
jury was sent home. After four p.m.
yesterday [defense counsel] on behalf of his
client requested police reports in regard to
the confidential informant [N.A.], who was
arrested on July 9, 2009. We know this
confidential informant is going to be called
as [a] witness by the State this morning and
obviously his credibility is a critical
issue in this case. . . .

For the first time defendant made a request
of this [c]ourt for the police reports
underlying that arrest on July 9, 2009. I
asked that [the prosecutor] provide that
material to the [c]ourt. He very promptly
emailed it to me after 4:30 last night.
Discovery consists of 65 pages, so I took it
home last night to review in detail and I've
made a decision that defendant is entitled

12 A-3458-13T1
 to this discovery. I believe it will assist
him in attacking the credibility of [N.A.].

The court gave defense counsel a complete, un-redacted copy

of the report, after confirming the prosecutor did not have any

objections. Before physically turning the report over to

defense counsel, the judge noted there were certain allegations

in the police report that "did not result in any charges in

[the] federal indictment." In response, the prosecutor

acknowledged that "an undercover officer says that [N.A.]

approached his car with a gun . . . directly pointing the gun at

him. . . . [P]laying devil's advocate saying that [defense

counsel] is allowed to inquire into that, how is that relevant

to anything going on in this trial?" The judge responded it was

relevant to show "[N.A.] is testifying out of consideration."

Defense counsel argued that the facts as described in the

police report showed N.A. could have been charged under New

Jersey law with committing an aggravated assault against the

officer by pointing a firearm at him. Defense counsel

maintained the failure of the federal indictment to include this

charge was relevant to show it was part of the favorable

consideration N.A. received for his cooperation. N.A. testified

at the N.J.R.E. 104 hearing that he was aware that the Trenton

Police Department had charged him with "pointing a firearm at an

Officer Flowers." However, he did not discuss that particular

13 A-3458-13T1
charge with any state or federal law enforcement agent; no

promises were ever made regarding that charge; and he did not

know why the charge was not included in the federal indictment.

N.A. speculated the federal authorities did not include the

charge in the indictment because the offense was committed

against a Trenton Police Officer, not a federal agent.

Although the trial judge was initially inclined to allow

defense counsel to question N.A. about the failure to prosecute

this charge, he ultimately found N.A.'s speculation persuasive.

The judge gave the following explanation for his ruling:

[T]he Court has looked at and listened very
carefully to [determine] whether [N.A.] got
consideration for the dismissal of that
aggravated assault as a result of
cooperating.

He certainly has no knowledge. In fact, he
knew something that perhaps the Court didn't
know, is that perhaps the reason it wasn't
carried over is that had he pulled a gun on
a federal agent, a federal employee, as he
noted, perhaps it would have been carried
over, but it was just a lowly, so to speak,
Trenton Police Officer, so in that sense the
Court's going to rule that that cannot be
gone into on cross examination by the
defendant.

. . . .

The Court is also mindful of Rule 403, that
arguably [defense counsel] argues it's
relevant evidence, but I think getting into
that charge can be a little confusing to a
jury. It's not in the indictment and can be
a waste of time, and certainly the jury is

14 A-3458-13T1
 going to hear all the prior criminal charges
for which this defendant's been indicted,
the fourth charges I just reiterated on the
record, plus consideration that he's
presumably receiving, to testify in this
trial and with the pending indictment
hanging over his head.

The State rested its case in chief at the conclusion of

N.A.'s testimony. Defendant was the only witness for the

defense. He denied ever discussing the sale of illicit

narcotics with N.A. during the recorded telephone conversations.

He testified that any references to selling or buying referred

to motorcycles because he and N.A. are both motorcycle

enthusiasts. He knew of N.A.'s reputation as a drug dealer and

about N.A.'s home being raided by the police from conversations

he had with his cousin.

A

FIRST DAY OF DELIBERATIONS

The jury reported to the trial court on the morning of

October 29, 2013 to begin deliberations. After reviewing the

verdict sheet and selecting the alternate, the trial judge

addressed juror number 1 as follows:

THE COURT: Juror Number 1, you . . . will
be the foreperson of the jury because of
your position in the jury box. If you
decide to take on this task, you will
preside over deliberations and tell us the
verdict when reached. Your vote carries no
greater weight than that of any other
deliberating juror. It will be your

15 A-3458-13T1
 responsibility to lead deliberations. It is
also your responsibility to tell us what the
verdict is when the jury has reached it.

Juror Number 1, are you willing to take on
those responsibilities?

JUROR NUMBER 1: Yes, sir.

The jury began deliberating at 9:35 a.m. The matter

proceeded from this point without incident until the trial judge

informed the attorneys he had received a note from the jury at

11:21 a.m., stating: "Your Honor, we are unable to reach a

unanimous verdict on Count 1.” The note was signed by Juror

Number 1 in her capacity as foreperson. The judge reminded the

attorneys the jury had begun deliberating at 9:35 a.m., and had

taken a twenty-minute break when a beverage order was delivered.

Based on this, the judge calculated the jury had only actually

deliberated for approximately one hour and thirty minutes. He

thus intended to instruct the jury to continue deliberating by

reading "the model jury charge which is entitled, judges

instructions on further jury deliberations." Both attorneys

agreed.

The judge brought the jury into the courtroom and told them

he estimated they had been deliberating "approximately an hour-

and-a-half." He also reminded the jury that during the initial

voir dire "you all indicated you were available through this

week. So I'm going to send you back into the jury room for

16 A-3458-13T1
continued deliberations." The judge then read to the jury the

model charge our Supreme Court approved in State v. Czachor, 82

N.J. 392, 405 n.4 (1980):

It is your duty as jurors to consult with
one another and to deliberate with a view to
reaching an agreement if you can do so
without violence to individual judgment.
Each of you must decide the case for
yourself, but do so only after an impartial
consideration of the evidence with your
fellow jurors.

In the course of your deliberations, do not
hesitate to reexamine your own views and
change your opinion if convinced it is
erroneous. But do not surrender your honest
conviction as to the weight or effect of
evidence solely because of the opinion of
your fellow jurors or for the mere purpose
of returning a verdict. You are not
partisans, you are judges. Judges of the
facts.

The judge directed the jury to continue deliberating until 12:30

p.m., when they would recess for lunch.

The next communication from the jury came sometime after

the lunch recess in the form of two notes. As read by the

judge, the first note stated: "Your Honor, Juror Number 9

requests to see Your Honor as a question she quote does not want

the rest of the jury to hear. It is not regarding the case.

Close quote. Signed by the foreperson." The second note

stated: "'Your Honor, the jury requests to hear the full

17 A-3458-13T1
testimony of W' - - which I take to mean witness - - '[N.A.] or

a transcript of same.' Again signed by the foreperson."

With approval of both attorneys, the judge decided to bring

juror number 9 into the courtroom "to find out what's on her

mind and make a decision after I speak to her and hear from

counsel." Juror number 9 came into the courtroom and sat in

the empty jury box.2 The following colloquy ensued:

JUROR NUMBER 9: I just wanted to know what
is the role of a foreman in a jury
deliberation?"

THE COURT: Well, I read the instructions as
part of my charge. And when I sent in the
written charge, it's contained in the
charge.

. . . .

THE COURT: And I'll just give you the page
reference. You know the more I think about
it, it's not actually part of the charge.
Obviously, there's the charge I gave. And
after I speak with the attorneys, I can
consider rereading what's referred to as the
model charge says is the obligations and
duty of the foreperson.[3]

2
The record does not reflect that the judge directed the eleven
jurors remaining in the jury room not to discuss the case until
juror number 9 rejoined them. Such a cautionary instruction is
crucial to ensure the verdict reflects the considered judgment
of all twelve jurors. This stands in sharp contrast to the
detailed instructions the judge gave the jury at the end of each
day to refrain from discussing the case among themselves, even
via any form of social media, and not to discuss the case until
all twelve deliberating jurors were present.
3
Rule 1:8-8(b)(2) provides:
(continued)

18 A-3458-13T1
 JUROR NUMBER 9: And if a juror member or
members feel that the foreman is doing more
than their actual role, how would that be
mentioned. Would that be - - would we bring
that to your attention or how do you work -
- or you work it out with the foreman? How
does that - - how do you handle that?

THE COURT: Well, I would want to speak to
the attorneys first. But once again, I will
read the duties and responsibilities to the
foreperson as I read before - -

JUROR NUMBER 9: Okay.

THE COURT: - - just telling these are your
responsibilities. And if there's a concern
by the jurors, you can send me a note.

JUROR NUMBER 9: Okay.

THE COURT: All right? Does that answer
your question?

JUROR NUMBER 9: Yes, it does. Thank you.

(continued)

In criminal cases, the court shall submit
two or more copies of its final instructions
to the jury for the jury's use in the jury
room during deliberations. The court may,
however, dispense with the submission of the
jury instructions in writing if it finds
that preparation of written instructions
will cause undue delay in the trial.

[(Emphasis added).]

It is the trial judge's obligation to ensure the written charges
submitted to the jury during deliberations contain the same
language as the charges read to the jury in the courtroom and
are otherwise complete in every respect.

19 A-3458-13T1
 THE COURT: Okay. Thank you. You're
excused.

[(Emphasis added).]

After juror number 9 left the courtroom, the judge asked

both attorneys if it was necessary to reread the description of

the foreperson's duties and responsibilities he had read to the

jury earlier that same day. Although the prosecutor did not

take a definitive position, he did emphasize that if the court

decided in favor of this course of action, the instructions

should be reread to the entire jury. The prosecutor also made

the following prescient observation:

We're working kind of blind. Obviously, we
just know what Juror 9 has told us. I
guess, just thinking out loud, my concern if
the [c]ourt does reiterate that, if there's
an undercurrent in there, that's going to
bring it right to the surface. . . . Maybe
that does need to be read. As I think out
loud, I think because the concern has been
raised by one of the jurors that it does
need to be addressed.

[(Emphasis added).]

Defense counsel opposed rereading the instructions on the

role of the foreperson to the jury. Echoing the concern

initially mentioned by the prosecutor, defense counsel noted:

I think there are several problems with
bringing the jury back into remind them of
the role of the jury foreman. I mean the
jury foreman is going to be there and is
going to hear this again. And is going to
be basically reminded of her duty in front

20 A-3458-13T1
 of 12 other jurors which is sort of almost
like an admonition that she's not doing her
job. If the woman who just came in has
concerns with how the jury foreman is doing
her job, they should work it out in the jury
room.

[(Emphasis added).]

The trial judge conceded that based only on juror number

9's account, it was "somewhat speculative as to what's going

on." To avoid the potential of undermining or embarrassing the

foreperson and to avoid the appearance that the court was taking

sides in some unknown conflict among jurors, both attorneys

recommended the judge simply send into the jury room the written

description of the foreperson's role without further comment.

The judge agreed.

The judge excused the jury for a fifteen-minute afternoon

break. Thereafter, the jury returned to the courtroom to hear

the playback of N.A.'s testimony, which took approximately

ninety minutes. It was 4:10 p.m. at the conclusion of the

playback. The judge decided to send the jury home for the day

without giving them the written charge on the role of the

foreperson. The judge informed the attorneys that after reading

the comments to Rule 1:8-4, he had discovered this court's

decision in Barber v. ShopRite of Englewood & Assocs., Inc., 406

N.J. Super. 32, certif. denied, 200 N.J. 210 (2009). Although

noting Barber was a civil case, the judge told counsel he wanted

21 A-3458-13T1
to read it overnight because he may decide not to send anything

further to the jury.

B

SECOND DAY OF DELIBERATIONS

The jury began its second day of deliberations on October

30, 2013, without any written instructions on the role of the

foreperson. Approximately thirty minutes after deliberations

had begun, the trial judge advised counsel the jury had sent out

two simultaneous notes. The first note came from the foreperson

and stated: "Your Honor, Juror Number 1 needs to discuss with

you conduct and discussions occurring by some jurors." The

second note was also signed by the foreperson. However, as the

judge noted, it was on behalf of a total of nine jurors

consisting of jurors numbers 10, 7, 8, 11, 3, 14, 9, 4, and 2;

the note stated: "Your Honor, jurors need to speak to Judge re

deliberations."

The judge decided to bring out the foreperson first alone,

telling counsel that he would remind her that,

there can be no discussion in court about,
you know, where they may lie in terms of
voting for guilt or innocence but hear what
she has on her mind, and then bring the
second group, the nine people she identifies
and, in effect, tell them that I could
select one of them to be the representative
or spokesperson or they could indicate to
the [c]ourt which one of the nine which
[sic] is to speak. And obviously then I

22 A-3458-13T1
 would give whoever is the representative I
end up speaking to, I will obviously say to
the other jurors, is there anything else
which you think needs to be added.

Neither the prosecutor nor defense counsel objected to this

approach.4 The following colloquy reflects the judge's

interaction with the foreperson:

THE COURT: Good morning. You may be
seated. All right. Juror Number 1, I
brought you in because you just sent me two
notes and I'll read them for the record.[5]
. . .

Now, let me advise you, I don't want to hear
anything from you about where the jury
stands in voting guilt or innocence. That's
off limits. And I know from the note that
came to me yesterday, I know you've been
having a lively discussion and that's
typical and that's expected. But obviously
I and the attorneys are hopeful that this
jury can reach a unanimous verdict as to the
four counts. That's the hope in every
criminal case. But within those parameters
and knowing what's off limits, you can tell
me what you think I should need to know to
try to move this towards a verdict.

JUROR NUMBER 1: We have been deliberating
in earnest but information is being brought
in that should not be brought in,
information that was not discussed in this
courtroom, some suppositions, what ifs,
different scenarios that I think is totally
inappropriate in discussing in
deliberations. More - - and in addition

4
Once again, the record does not reflect that the judge directed
the eleven jurors remaining in the jury room not to discuss the
case while the foreperson was absent.
5
The trial judge read the contents of the notes into the record.

23 A-3458-13T1
 that's troubling is the conduct of some of
the jurors in trying to sway the opinion of
the others to the point of slamming pens
down on the table, turning away from the
other juror because you're not allowing them
to speak. It's gotten a little nasty, to
put it lightly.

. . . .

THE COURT: Okay. Okay. Well, every
foreperson generally has a difficult job to
do and yours is especially difficult
because, you know, the evidence has led some
jurors in one direction and other jurors in
another direction. And, you know, I know
you understand your responsibilities. It
sounds like you're conducting them to the
best of your ability and this - - and the
evidence is such where reasonable minds can
differ. And I say that because that's true
of almost any case.

My thought is you identify nine additional
jurors. I was going to bring those nine in
and ask them, you know, if there's one
person they would like to identify as a
spokesperson who can, you know, presumably
say what's on their mind. Any reason why I
should not to do that?

JUROR NUMBER 1: No, Your Honor.

[(Emphasis added).]

At this point, the judge asked the foreperson if she had

any suggestions she could give him to assist her "in leading the

deliberations." In response, the foreperson directed the

judge's attention to the written jury charges that had been

given to the jury to take inside the jury room during

deliberations and focused on the part that reads: "It is your

24 A-3458-13T1
duty, as jurors, to consult with one another and to deliberate

with a view to reaching an agreement if you can do so without

violence to individual judgment." The judge then confirmed that

the foreperson wanted him to reread this language in the charge

to the jury. Thereafter, juror number 1 told the judge the

following:

JUROR NUMBER 1: And, Your Honor, the last
comment as an example of pointing to this
and us not deliberating or attempting to
intimidate was a question that was just
asked, are you afraid of retaliation. And,
you know, again, that's an example of things
that aren't appropriate and should not be
entering into our deliberations. How you
can get folks to just stick with the facts,
I've been trying but now I'm getting some
strong resistance.

THE COURT: Okay. And I'm asking the
question just because of what you just said,
would you like to continue as the
foreperson?

JUROR NUMBER 1: Yes.

After confirming with the "Senior Sheriff's Officer" that

the remaining eleven jurors were in the jury room, the judge

asked the foreperson to wait in another room while he discussed

the matter with the attorneys. Based on the foreperson's

comments about retaliation, the prosecutor was concerned about

matters extraneous to the evidence presented at trial affecting

the deliberations. After referring to the language in the jury

charges highlighted by the foreperson, defense counsel was

25 A-3458-13T1
concerned a group of jurors were conducting themselves in a

manner to intimidate and coerce other jurors into voting to

convict defendant. Defense counsel speculated that the

foreperson may be one of the jurors who is being targeted for

retaliation by this faction. The judge expressly stated he was

withholding any conclusion until he heard from the group of nine

jurors.

The nine jurors identified in the second note were brought

into the courtroom and seated in the jury box. The foreperson

was in a separate room by herself and two jurors remained in the

jury room. Thus the jury was now fractured into three separate

and isolated groups. After the judge read the two notes to the

group of nine, the following colloquy ensued:

THE COURT: What I'd like to ask is to begin
by speaking to one of you as, in effect, the
spokesperson and I can select one of you or
you can - - you can agree among yourselves
who would like to speak and it seems like,
from the show of pointing, that you have a
spokesperson and I'm going to hear from
Juror - -

JUROR NUMBER 10: Ten.

THE COURT: - - 10 . . . after I have the
exchange with Juror Number 10, if any of
you, the remainder of you, feel that you
have [] new [information] to add that Juror
Number 10 has not apprised me of, I will
give you that opportunity.

So Juror Number 10, tell me what's on your
mind.

26 A-3458-13T1
 . . . .

PROSECUTOR: I'm sorry, Juror Number 10.
Your Honor, before we begin, could we just
caution the gentleman?

THE COURT: Oh, yes. I'm sorry. You're
right. Certain things are off limits.
You're not allowed to tell me, nor any
juror, where you stand. I don't want to
know who's in favor of conviction, who's in
favor of not guilty, and where you stand in
terms of numbers. That's off limits.

JUROR NUMBER 10: I understand.

. . . .

It's the conduct of the foreperson starting
yesterday morning. She's been disrespectful
pretty much to everybody who's on the bench
here.[6] I was told to shut up when I was
trying to voice an opinion. I believe then
there's been other issues where she's
unwilling to deliberate and when we try to
bring up deliberations, she sat there in a
corner, not willing to participate, just
fold her arms, saying I've mentioned - -
I've discussed things already, I'm not
willing to go any further. And it just - -
from yesterday morning, probably around ten-
thirty, it's just been beating heads against
the door. She's not willing to listen to a
discussion. She’s not willing to speak
nicely to anybody. And it was like that
yesterday and it's got like that again
today. She's treating us like we're her
five year old kids, pretty much how you can
put it down.

6
We presume this was a reference to the eight jurors sitting in
the jury box.

27 A-3458-13T1
 And then there was - - there was one other
thing that I don't know if you want me to do
it sidebar or if you want me to bring it up
now that happened last week.

THE COURT: That happened last week?

. . . .

JUROR NUMBER 10: Yes. It's something that
happened and I - -

THE COURT: Well, let me ask you this.
Whatever you want to tell me, is it known,
as far as you know, to the other jurors?

JUROR NUMBER 10: Same jurors were in the
room and the same conversation took place.
Yes.

THE COURT: So other jurors - - whatever you
want to tell me, some other jurors were
present?

JUROR NUMBER 10: You know what I'm talking
about? Everybody know?

UNKNOWN JUROR: Yes.

JUROR NUMBER 10: Who was in the room at the
time?

UNKNOWN JUROR: I believe you were.

JUROR NUMBER 10: [Refers to another juror by
her first name]?

THE COURT: So you and two other jurors - -
I mean, the reason, if you're the only one
who knows it, I will bring you to sidebar.

[(Emphasis added).]

From this point forward, juror number 10 ceased to be the

"representative" or "spokesperson" of the group of nine jurors

28 A-3458-13T1
because the views he expressed to the judge were based

exclusively on his personal account of what transpired. The

following colloquy took place entirely at sidebar.

THE COURT: [Addressing juror number 10] All
right, sir. Go ahead.

JUROR NUMBER 10: So last Friday during
lunchtime, we were sitting in the meeting
room and we were discussing multiple things,
just as we do, nothing about the case. Then
Juror Number 1 mentioned that her - - we
were talking about mold remediation . . .
and then she starts talking about how her
neighbor's house, in 2007, was set on fire.

. . . .

. . . [A]nd I'm unclear whether it was a
police officer or a neighbor said to her,
well, this could be retaliation for how you
treat the drug dealers on the street and she
said . . . this could be based on the fact
that she sees drug dealers on the street and
she goes and knocks on their window and
tells them to move on, move down the street.
I thought it . . . was something that should
have been raised straightaway. I let it go
for a bit but based on comments that are
coming out during the [deliberations][7] right
now, it just seems like, based on the facts,
that that could be an influence in her
decision.

That's my opinion. It's something that has
been brought up this morning. . . .

THE COURT: Other than that comment that you
say Juror Number 1 made last Friday . . .

7
Juror number 10 actually said "arbitration." However, it
appears to us the juror simply misspoke and intended to say
"deliberations."

29 A-3458-13T1
 once you started your deliberations
yesterday - -

. . . .

has that type of comment by any juror been
made?

JUROR NUMBER 10: There was a comment
probably about half an hour ago that said is
anybody afraid of retaliation in the case?

THE COURT: Referring to the jurors?

JUROR NUMBER 10: To the jurors based on
whatever decision was made. Some people
said yes, some people said no. And when she
was asked, she didn't respond. And then
when she was asked again, she didn't
respond. And then somebody said, can you
please respond, and she said no comment.

. . . .

. . . [T]hat's assuming - - that came up
once.

PROSECUTOR: Was that before or after your
notes got sent out?

JUROR NUMBER 10: That was . . . we only
thought there was one note that got sent
out. She wouldn't tell us what was in the
second note. She sent that without telling
anybody.

[(Emphasis added).]

In response to this allegation, the Judge handed the two

notes to juror number 10. We note, however, that the judge had

read the contents of both notes to all nine jurors when they

were first seated in the jury box. After examining both notes,

30 A-3458-13T1
juror number 10 identified the note that was signed by the group

of nine jurors as the only note he and the other eight jurors

had seen before. At this point, juror number 10 clarified the

extent of the jury's disunity by noting that two other jurors

had refused to add their names to the note signed by the group

of nine.

JUROR NUMBER 10: And then, as soon as I said
I want to speak to the Judge regarding
misconduct and how you're treating people,
these people just said I want to sign on, I
want to sign on, I want to sign on. It
pretty much went all around the room. There
was [sic] others that just said too many are
going in, we won't go, but everybody feels
the same way.

. . . .

THE COURT: . . . and the other note, C-9,
indicates Juror Number 1 would like to speak
to the Court.

. . . .

She did not make that aware to you when - -

JUROR NUMBER 10: We saw her. We saw her
write a second note. We said please tell us
what's on the second note and she licked the
envelope and sealed it and went to the door
and knocked.

At this point, the judge permitted the attorneys to question

Juror Number 10.

DEFENSE COUNSEL: . . . Sir, so there is a
discussion in the jury room about a fear of
retaliation?

31 A-3458-13T1
 JUROR NUMBER 10: It was mentioned based on
the fact of what happened last week and the
conversation about how someone told her that
maybe it was retaliation for how she treated
- - how she went outside and knocked on drug
dealers' cars that we're assuming that she
knew where (indiscernible) house and told
them to move. Then one of the other jurors
who [was] also part of hearing [sic] the
conversation brought that up and said, okay,
is anybody scared of retaliation because
just based on the way it's been suggested -
-

DEFENSE COUNSEL: Right.

JUROR NUMBER 10: - - it's been - - you know,
that's why we came back in yesterday after
an hour and said we're done, locked.

DEFENSE COUNSEL: Okay. So I'm trying to
understand this correctly. Was the issue of
retaliation brought up by a juror other than
Juror Number 1?

JUROR NUMBER 10: Yes.

. . . .

DEFENSE COUNSEL: Okay. I appreciate your
honesty. Thank you.

[(Emphasis added).]

Through a series of follow up questions by the prosecutor

juror number 10 later clarified that the conversation concerning

retaliation occurred during the lunch break. Moreover, "only a

few" jurors were present when it occurred. After this point was

clarified, defense counsel asked the judge to address an issue

32 A-3458-13T1
outside the presence of juror number 10. The judge responded as

follows:

THE COURT: Okay. Before we do that, I have
some questions and I do this because, number
one, we're at sidebar, number two because .
. . you're the spokesperson. Do you think
there's anything I can do to assist the jury
in ultimately reaching a unanimous verdict
as to any one of the four counts?

JUROR NUMBER 10: No. I believe we have a
group of people who are willing to
deliberate except one.

THE COURT: Okay. And is that - - which
juror?

JUROR NUMBER 10: Juror Number 1.

THE COURT: Do you think . . . Juror Number
1 was made the foreperson because of her
seat, just by happenstance she was Juror
Number 1? You know, Juror Number 1, they're
always asked do you want to be the
foreperson?

JUROR NUMBER 10: She gloated. She gloated
last week that she would be the foreperson
of the trial.

THE COURT: Do you think you can - - you and
all the other 11 deliberating jurors - - can
have a discussion based upon the facts in
the case, based upon the evidence, and
that's the only thing, you know, you can
decide this case on, the evidence you heard
from the witness stand, exhibits marked into
evidence, can be no speculation - -

. . . .

no guessing? Do you think discussion could
or could not be more productive if there was
a different foreperson?

33 A-3458-13T1
JUROR NUMBER 10: Yes. But to be honest with
you, it's - - it would - - regardless of
whether or not it's a different foreperson,
it's whether or not that juror comes back
into that room. . . .

. . . .

. . . because it's - - it won't go any
further.

DEFENSE COUNSEL: You mean, as a - - I'm
sorry, Judge. As a juror, as opposed to a
foreperson?

JUROR NUMBER 10: There's 11 other jurors in
there and right now all 11 of us feel like
we've tried to do - - we've tried to go back
and forth, discuss different points, and
it's only 11 of us going through this so
it's an 11 person jury since yesterday
morning at nine-thirty.

THE COURT: So the bottom line is you feel
Juror Number 1 does not want to engage in
reasonable discussion?

JUROR NUMBER 10: The first thing she said
this morning - - somebody asked a question.
One of the things that she said is, I'm
going to say this once and then I'm done for
the day.

. . . .

DEFENSE COUNSEL: Is the jury or any members
of the jury considering facts that have not
been presented as evidence?

JUROR NUMBER 10: I would say there are
scenarios that are coming up that have not
been presented as evidence that Juror Number
1 is bringing up. Yes.

34 A-3458-13T1
DEFENSE COUNSEL: And only from Juror Number
1?

JUROR NUMBER 10: Yes.

. . . .

DEFENSE COUNSEL: Do you feel that you've
sort of given us an understanding that has
been sort of distilled from your fellow
jurors in a box?

JUROR NUMBER 10: If you polled every single
person in that room, you would get the same
comment. Prior to me coming in, I was
sitting closest to Juror Number 1 when I
heard the discussion that I mentioned
previously . . . so I proposed that I would
be the spokesperson for the group based on
that. And I think it was after I was told
to shut up this morning and then other
people's comments were being brushed off and
it was as though the foreperson was, it's
her way or the highway. But I believe every
single person that you polled, they would
give you the same response that I did.

. . . .

THE COURT: Based on your discussions of
deliberations yesterday and today, do you
believe any jurors - - when I say that, all
12 - - do you believe any juror has tried to
intimidate another juror?

JUROR NUMBER 10: No.

. . . .

THE COURT: And the fact only nine came in,
not 11, do you - - what do you attribute the
fact that two jurors had decided not to come
in, if you know?

JUROR NUMBER 10: I do.

35 A-3458-13T1
 THE COURT: I don't want you speculating.

JUROR NUMBER 10: One of them was just, okay,
there's enough of you guys in, I don't need
to be a part of it, and just put his head in
his hands and said, let's get this over
with. And then another one was - - just
didn't say anything. Just - - she saw the
nine of us going in and that was it.

[(Emphasis added).]

The record reflects the judge initially directed juror

number 10 to rejoin the other eight jurors seated in the jury

box to discuss the matter privately with the attorneys.

Thereafter, the judge informed counsel he wanted to make sure

none of the eight jurors who were not privy to the lengthy

sidebar discussion with juror number 10 wanted to speak to him

about any issue concerning deliberations. As the judge phrased

it: "I'm going to give them that invitation." Both attorneys

approved this approach.

Defense counsel also wanted to hear from the two other

jurors who decided not to join the group of nine. However, the

judge was willing to rely on juror number 10's description of

these two jurors' reaction to the group's initiative to contact

the court. Again, quoting the judge: "Well, we heard the

reasons from . . . juror number 10." Defense counsel pressed

the issue by noting that according to juror number 10's

representations: "But the one juror was silent." Although the

36 A-3458-13T1
judge responded "I agree," he took no action to hear directly

from these two jurors.

The judge then addressed the nine jurors seated in the jury

box:

THE COURT: All right. Ladies and
gentlemen, and again I'm addressing the nine
jurors in the box, I had a discussion with
the attorneys, extensive discussion with
Juror Number 10, and you identified him as a
spokesman, he was very [eloquent]. I just
don't want to preclude - - [if] anyone feels
they wish to address me and the two
attorneys at sidebar, you can. Now, I know
you didn't hear everything that Juror Number
10 said at sidebar but does any one of you
feel strongly you would like to talk to me
about deliberations? Again, there can be no
discussion about how anyone is leaning
towards a - - on a verdict or anything of
that nature.

[The record indicates no verbal response.]

THE COURT: Okay. Well I don't see any
hands. I'm going to ask that the nine of
you go back into the room. Your beverage
has arrived so obviously when the beverage
arrives, there's no deliberations and
obviously, unless you have 12 together,
there's no deliberations. So let's take . . .
a 15 minute break. No deliberations.

[(Emphasis added).]

After the nine jurors left the courtroom, the prosecutor

addressed the court with his assessment of juror number 10's

account of events. He proposed the court reinstruct the jury

concerning its duty to decide the case based only on the

37 A-3458-13T1
evidence presented at trial, and not on comments made by a

fellow juror based on his or her particular life experience or

any similar extraneous matter. The prosecutor also suggested

the judge's instructions should not assess blame or imply that

any individual juror is responsible for the jury's alleged

inability to deliberate with civility and respect for opposing

points of view.

THE PROSECUTOR: I don't think any fingers
need be pointed in that discussion.
Everyone should hear it because I doubt
we're getting the full story from what looks
to be the two sides in this jury room, but
. . . they essentially have to act like
adults. They have to get past it and they
have to talk about the case. And if they
can't reach a verdict, they can't, but I
think they need to have the opportunity and
maybe just a refresher on what their job is
is going to help them do that.

The trial judge asked both attorneys whether, based on

juror number 10's account of events, they believed "Juror Number

1 should continue as the foreperson." Both defense counsel and

the prosecutor expressed skepticism about the court's authority

to remove juror number 1 as the foreperson of the jury. Defense

counsel in particular returned to the issue of retaliation,

noting "juror number 10 indicated that there was a polling in

the jury room about whether each juror feared retaliation."

On this basis, defense counsel moved for a mistrial or

alternatively for the trial judge "to read the deliberations

38 A-3458-13T1
charge" when the jury returned from the break. In response to

the judge's request for clarification, both attorneys confirmed

the "retaliation" at issue did not involve "one juror against

another." The retaliation allegedly discussed among the jurors

concerned "their day to day lives, if in fact they return one

verdict and not another verdict . . . ." It was the type of

retaliation that occurs "outside the courthouse."

Once the issue of retaliation was properly framed by the

parties, the trial judge returned to the tension between juror

number 10 and the foreperson. After restating the conflicting

accounts given by jurors 1 and 10 as to who was responsible for

the state of incivility in the deliberative process, the trial

judge decided to bring the twelve deliberating jurors and the

alternate into the courtroom, and reread to them the part of the

charge that describes their duty as jurors

to weigh the evidence calmly, without
passion, prejudice, or sympathy. Any
influence caused by these emotions has the
potential to deprive both the State and the
defendant of what you promised them, a fair
and impartial trial by fair and impartial
jurors. Also speculation, conjecture, and
other forms of guessing play no role in the
performance of your duty.

The judge also intended to recharge the jury on the role of

the foreperson. He planned to reiterate and emphasize that

juror number 1 was designated foreperson by virtue of occupying

39 A-3458-13T1
a seat number in the jury box. He also planned to supplement

the model charge with the following language taken directly from

our decision in Barbe, supra:

[The] foreperson['s] . . . role [is] to
maintain order in the deliberations, marshal
the jurors' votes on the issues presented on
the verdict sheet and to render the verdict
on behalf of the jurors. Otherwise, the
jury foreperson is only one vote of six and
his opinions have no greater weight than
those of the other jurors. It is not the
role of the foreperson to explain legal
concepts to the other jurors.

[406 N.J. Super. at 56 (citations omitted).]

Finally, the "last thing" he intended to read to the jury was a

modified version of the standard charge on the role of the

foreperson, deleting the language that informs the foreperson:

"it is your responsibility to lead deliberations. It is also

your responsibility to tell us what the verdict is when the jury

has reached it."

After informing counsel of this decision, the judge denied

defendant's motion for mistrial "without prejudice." Noting for

the record that the previous day the jury had sent out a note

indicating their deliberations had reached an impasse, the judge

told the attorneys he planned to read the charge entitled

"Judge's Inquiry When Jury Reports Inability to Reach Verdict"

approved by the Supreme Court on June 30, 2013, three months

before the start of the trial.

40 A-3458-13T1
 At the end of this lengthy interlude in deliberations, made

even longer by the discussion that followed juror number 10's

sidebar revelations concerning retaliation, a Sheriff's Officer

reminded the judge that Juror Number 1 had been kept alone in a

room, separated from the rest of the jury during the entire

time. The judge decided to reconvene the jury after a fifteen-

minute recess and instructed the Sheriff's Officer accordingly.

At the end of the recess, the judge brought the foreperson into

the courtroom by herself and again described to her "the

responsibilities of the foreperson." The judge then addressed

juror number 1 directly as follows:

THE COURT: Based on everything you know, do
you think you can carry out that
responsibility? In other words, lead
deliberations, give everyone a chance to
speak . . . and see if you can develop a
consensus. Obviously, I know when I had you
here a little while ago, you told me your
concerns and I’m concerned for your
concerns. Let me ask you once again, do you
think you would like to continue this
responsibility of leading deliberations and
give everyone a chance to speak up and
discuss it in a meaningful manner?

JUROR NUMBER 1: Yes, but may I ask a
question?

THE COURT: Absolutely.

JUROR NUMBER 1: When - - but when it gets
beyond the scope of what we were to do, how
would you -

41 A-3458-13T1
 In response, the judge informed the foreperson he planned

to recharge the jury regarding their duty not to "speculate,

conjecture, [or engage in] other forms of guessing" about

matters outside the evidence presented at trial. He emphasized

that the verdict must be based on the evidence and must be

unanimous. The judge then again asked juror number 1: "[D]o you

feel . . . you can lead deliberations in a meaningful manner?"

She responded: "Yes."

After the twelve deliberating jurors were seated in the

jury box, the judge again instructed them at length about the

manner the foreperson is selected as described in Rule 1:8-4 and

her role and responsibilities in this capacity. With respect to

the verdict sheet, the judge informed the jurors that "until you

can come to a unanimous verdict on Count 1, there's no reason to

go to Count 2, 3, and 4, and I know you figured that out."

(Emphasis added). The judge also noted his concern regarding

the note the jury had sent out the previous day, reporting they

were unable to reach a unanimous verdict on Count 1. After

noting the jury had not sent out a similar note that day, the

judge asked the jury the following question:

But ladies and gentlemen, do you feel that
further deliberations will be beneficial or
do you feel you've reached a point at which
further deliberations will be futile? I'm
going to ask you to return to the jury room
and confer and advise me in a decision in

42 A-3458-13T1
 another note as to whether you wish to
continue deliberating or whether you feel
that would be completely nonproductive.[8]
And I ask the foreperson, whenever you send
a note to me, always read it to your fellow
jurors so everyone can know exactly what's
being sent to me, if there's any - -
because, obviously, I want the note to
represent the thoughts of all 12. All
right.

After the passage of an unknown period of time, the judge

received two more notes from the jury. Although both notes were

written and signed by the foreperson, one note conveyed the

following message from juror number 7: "Your Honor, Juror Number

7 would like to talk to you re instructions on deliberations."

The second note read: "Your Honor, we have reached an impasse.

Eleven jurors want to continue deliberation. One juror does not

want to continue deliberations." After conferring with counsel,

the judge decided to address first the concerns expressed by

juror number 7.

It is important to emphasize that juror number 7 was one of

the nine jurors who sought to speak to the court earlier in the

day "re deliberations." However, by selecting a "spokesperson"

to speak for the group instead of speaking directly with each

8
The judge's instructions here were a verbatim recitation of the
language in the model jury criminal charge entitled: "Judge's
Inquiry When Jury Reports Inability to Reach Verdict," approved
by the Supreme Court on June 30, 2013.

43 A-3458-13T1
individual juror, the court never heard her actual views on the

subject.

THE COURT: Tell us what's on your mind?

JUROR NUMBER 7: Your Honor, you just read to
us a whole bunch of - -

THE COURT: Instructions.

. . . .

JUROR NUMBER 7: And one of it was that we
had to keep an open mind and I thought that
was very important for us once we're going
back into that room and I just didn't know
how to approach that because there are some
people in the room who will not - - who do
not want to keep an open mind and who have
emphatically said that they will not keep an
open mind and that just upsets me because we
are very insistent to do justice and I think
if it's your instructions for that, . . . I
just felt I had to bring it to your
attention.

THE COURT: Is there anything you can
suggest to the [c]ourt, other than what I've
already done, and we've read some
instructions giving you additional . . .
instructions, anything else that comes to
mind?

JUROR NUMBER 7: I cannot and that's why I'm
coming to you.

. . . .

And that's how a majority of us do feel,
that we are willing to keep an open mind.
We are willing to talk and it's so hard that
when someone just comes back to you and
says, no I'm not.

44 A-3458-13T1
 THE COURT: Let me ask you this. I heard
from Juror Number 10 before, as well as
Juror Number 1, separately. The [c]ourt has
some limited discretion in terms of
appointing a different foreperson. Do you
think discussions would be more productive
leading to a possible verdict if there was a
different foreperson?

JUROR NUMBER 7: Well, yes and no. Yes,
because I think we might be able to . . .
try and discuss and have it in a non-
confrontational way; no because I think the
juror who has emphatically said no, they
don't want to do it is not going to change
their mind . . . . I personally posed the
question that why can we not talk about
this, even if it means that we have to talk
for 150 times, because maybe the 151st time,
some - - a phrase that you may say might
open the lightbulb, whatever, and the juror
came back and said no.

[(Emphasis added).]

After excusing juror number 7, the judge discussed with the

attorneys the note indicating the jury had reached an impasse.

After acknowledging the eleven-to-one status of the jury's

deliberations, the prosecutor declined to characterize the

situation as "futile." The prosecutor argued the "11 people in

there willing to try" deserved "a chance to talk to the

individual . . . who has indicated that they don't want to

review the facts of the case . . . ." Citing our decision in

State v. Rodriguez, supra, the prosecutor suggested the court

consider removing juror number 1 as the foreperson of the jury

45 A-3458-13T1
and appoint or have the jury elect a different juror as

foreperson.

The prosecutor conceded that "Rule 1:8-4 does not

contemplate the replacement of a [jury's] foreperson." He

nevertheless argued it was "within the ambit of the judge's

discretion, particularly in light of [Rule] 1:1-2 which

authorizes relaxation of the rules to appoint a new foreperson

where there were obvious difficulties with a member of the jury

originally designated." According to the prosecutor, an

individual juror who refuses to continue deliberating after the

second day of deliberations "is prejudicial to both the defense

and the State, and if that can be overcome, then we should be

able to get a verdict."

Defense counsel urged the trial judge to declare a mistrial

because the jury had announced it was "deadlocked." Defense

counsel argued:

Eleven people are willing to continue and
one is not. So that is an impasse and the
instruction that the [c]ourt read to them
before they went out was to go back, try to
confer, and then advise of your decision in
another note. Another note came out, we're
at an impasse, and I think the appropriate
thing to do now is to declare a mistrial.

The trial judge denied defense counsel's application for a

mistrial and decided to replace juror number 1 as foreperson.

Acknowledging Rule 1:8-4 is "silent on the issue of replacing

46 A-3458-13T1
the foreperson," the judge nevertheless found support for this

decision in Rodriguez. The judge specifically cited Rodriguez's

reliance on Rule 1:1-2 as justification for relaxing the

mechanism for the designation of a foreperson under Rule 1:8-4

"where there were obvious difficulties with the member of the

jury originally designated." Rodriguez, supra, 254 N.J. Super.

at 350.

Focusing on the "obvious difficulties" required to remove

juror number 1 as foreperson, the trial judge made the following

findings:

In terms of difficulties, when I heard Juror
Number 10 at sidebar, he indicated the
foreperson was somewhat of an obstructionist
in permitting deliberations go forward. She
was not leading deliberations as I charged
her to do. So for that reason, I am going
to appoint someone else . . . .

Defense counsel objected to the replacement and argued for

a mistrial, especially in light of juror number 7's allegations

that there "were some people among or in the jury who will not

keep an open mind." Both attorneys suggested if the court was

inclined to replace the foreperson, it should be left to the

jurors to elect. When the jury returned to the courtroom, the

judge acknowledged receipt of the note from juror number 7 and

the other note indicating the jury was at an "impasse," with

47 A-3458-13T1
eleven jurors wishing to continue deliberating, and one juror

not willing to go any further.

The judge also mentioned the time consumed to respond to

the various notes sent by both the jury and individual jurors,

meant the jury had not had a long time to actually deliberate.

He had thus decided to give the eleven of twelve jurors the

opportunity to continue deliberating after lunch. The judge

then made the following statement:

Also, I'm making a decision to have a
different foreperson and I say that, Juror,
not in criticism of you. I just say
sometimes it's good to hear from another
voice so I don't want you to take it as
criticism. Whatever your convictions are
are your convictions, whatever 12 of you,
your convictions are. I've, you know, read
the instructions over this morning as to how
you're to conduct your deliberations and you
have a copy of the charge with you . . . .
Look at that to assist you.

As you know, any verdict can be based solely
on the evidence you've heard from the
witness stand, the exhibits marked into
evidence. Anything else is not material,
not relevant, to your deliberations and
ultimately hopefully a unanimous verdict.
But in general I'm following a general rule
and, for whatever reason - - let's say Juror
Number 1 had been selected as an alternate.
You go right down the row. So following
that, Juror Number 2, I'm going to ask you
if you would be willing to take on the
responsibilities of a foreperson and, again,
I can review with you responsibilities.
Would you be willing to take on those
responsibilities?

48 A-3458-13T1
 JUROR NUMBER 2: Yes.

Deliberations resumed after the lunch recess.9 The jury

sent out a note at 2:39 p.m., requesting a playback of parts of

N.A.'s testimony. The judge advised the attorneys he planned to

send the jury home "at four o'clock, right on the dot." As the

judge was about to reconvene the jury to announce the recess for

the day, the jury sent out another note requesting "to hear the

testimony of Officer Pope and DEA [Agent] Brown." The judge

informed the jury they would hear the playback the following day

and recessed for the day. We pause to note that the courtroom

where this case was tried was equipped with video recording

equipment. Thus, the playback enabled the jury to see and hear

the witnesses.

C

THIRD DAY OF DELIBERATIONS

The final day of the trial began with an hour delay in

arranging the playback of Pope's and Brown's testimony.

Although the note from the jury simply requested to replay "the

testimony" of these two witnesses, the judge did not make any

9
In the interest of completeness, the record shows the alternate
was returning to the jury room and joining the deliberating
jurors during the various recess periods. The judge questioned
the alternate when defense counsel brought this irregularity to
his attention. The alternate told the judge he had not discussed
any aspect of the case with the deliberating jurors.

49 A-3458-13T1
attempt to narrow the scope of the request. Once the twelve

jurors were seated in the jury box at 10:10 a.m., the judge told

the jury the court clerk estimated the playback of Pope's entire

testimony "could be as long as two-and-a-half hours." The

playback of Brown's entire testimony would take approximately

forty-five minutes. The judge told the jury he foresaw "going

for about two hours, because I think that's your limit . . . ."

A one-hour lunch recess was scheduled to start at twelve noon

and the jury would then reconvene to hear the remaining part of

the playback.

After the playback was complete, the jury would resume

deliberations. However, the judge informed the jury that

"because of a commitment I have unless I get word from you

otherwise . . . I'm going to be sending you home a little before

3:30 [p.m.] today." The judge also suggested the jury could

resume deliberations after Pope's playback was completed; they

could then break again to view Brown's playback, and resume

deliberations after Brown's playback was completed.

The playback did not proceed as the judge expected. After

an unexpected bathroom break, the judge decided to send the jury

back at the end of Pope's playback around 12:05 p.m., "to

deliberate for a short while before you have [your] lunch

break." Acknowledging the jury had requested a playback of both

50 A-3458-13T1
Pope's and Brown's testimonies, the judge nevertheless decided

to

give you a short time, if you decide you
want to deliberate over what you heard so
far, or you could send me a note, no, we
want to come right back into court, as you
indicated late yesterday, before we had a
late start today of Mr. Eric Brown.

Either way, you're going to be either be
deliberating in the jury room or in the
court listening to additional playback
you've requested until about 12:30 [p.m.]

When the jury left the courtroom, the judge told the

attorneys he decided to take this measure because he believed

the jury was tired after viewing and listening to two hours of

video playback testimony. The jury reconvened after lunch and

requested to view the playback of Agent Brown's testimony. The

playback ended at 2:25 p.m., at which time the court again

recessed to allow the jury a beverage break.

After the passage of an undisclosed amount of time, the

jury sent out a note reporting they had reached a unanimous

verdict.

II

Against this record, defendant now appeals raising the

following arguments:

POINT I

THE DEFENDANT'S FEDERAL AND STATE
CONSTITUTIONAL RIGHT TO DUE PROCESS OF LAW

51 A-3458-13T1
AND TO A FAIR AND IMPARTIAL JURY WAS
VIOLATED.

A. THE JURY DELIBERATIONS WERE
IRREMEDIABLY TAINTED BY A JUROR'S
PERSONAL ACCOUNT OF A BURNING
HOUSE RESULTING FROM DRUG DEALER
RETALIATION, FOLLOWED BY A
DISCUSSION AMONG JURORS ABOUT
THEIR PERSONAL FEARS OF DRUG
DEALER RETALIATION.

B. THE TRIAL COURT FAILED TO VOIR
DIRE A JUROR WHO REPORTED THAT HE
JUST WANTED TO "GET IT OVER WITH"
AND FAILED TO VOIR DIRE OTHER
JURORS WHO REPORTED THEY FEARED
DRUG DEALER RETALIATION.

C. THE TRIAL COURT'S INSTRUCTION
TO THE JURORS ADVISING THEM TO
CONTINUE THEIR DELIBERATIONS WAS
ERRONEOUS AND PREJUDICIAL. (Not
Raised Below)

D. A TRIAL PROCEDURE IN WHICH
JURORS IGNORE INSTRUCTIONS AND
INJECT EXTRANEOUS MATTERS INTO THE
DELIBERATION PROCESS UNDERMINES
PUBLIC CONFIDENCE IN THE
ADMINISTRATION OF JUSTICE.
(Partially Raised Below)

POINT II

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW
AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO
THE UNITED STATES CONSTITUION AND ART. I,
PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS
VIOLATED BY THE PROFFER OF EXTRAORDINARILY
PREJUDICIAL TESTIMONY PERTAINING TO THE
DEFENDANT'S ALLEGED DRUG "NETWORK" AND
"ASSOCIATES."

52 A-3458-13T1
POINT III

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW
AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO
THE UNITED STATES CONSTITUTION AND ART. I,
PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS
VIOLATED BY THE TRIAL COURT'S RULING BARRING
THE DEFENDANT FROM PRESENTING A COMPLETE
DEFENSE.

A. THE FACT THAT THE POLICE
FOUND NO EVIDENCE OF DRUGS OR
DEALING WHEN THEY SEARCHED THE
DEFENDANT'S ALLEGED DRUG NUISANCE
HOUSE WAS RELEVANT AND PROBATIVE
OR WHETHER THE DEFENDANT HAD
MAINTAINED A DRUG NUISANCE
PROPERTY AT THAT LOCATION.

B. THE FACT THAT THE LONE
WITNESS TO THE ALLEGED DRUG
TRANSACTION WAS NOT PROSECUTED FOR
POINTING A GUN AT A POLICE OFFICER
WAS RELEVANT EVIDENCE OF BIAS AND
SHOULD HAVE BEEN ADMITTED.

POINT IV

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW
AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO
THE UNITED STATES CONSTITUTION AND ART. I,
PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS
VIOLATED BY THE ACCUMULATION OF TRIAL
ERRORS. (Partially Raised Below)

POINT V

THE SENTENCE IS EXCESSIVE.

A. THE TRIAL COURT IMPROPERLY
BALANCED THE AGGRAVATING AND
MITIGATING CIRCUMSTANCES.

B. THE TRIAL COURT MADE FINDINGS
OF FACT TO ENHANCE THE SENTENCE.

53 A-3458-13T1
 In his pro se supplemental brief, defendant raises the

following additional arguments:

POINT I

A DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS
GUARANTEED BY THE FOURTEENTH AMENDMENT TO
THE UNITED STATES CONSTITUTION AND ART. I,
PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS
VIOLATED BY THE TRIAL COURT'S RULING BARRING
A DEFENDANT FROM PRESENTING A COMPLETE
DEFENSE

A. THE FACT THAT THE POLICE
VIOLATED THE FOURTH AMENDMENT TO
SEARCH A DEFENDANT'S ALLEGED DRUG
NUISANCE HOUSE WAS RELEVANT

B. THE FACT THAT THE BODY
WIRE RECORDING COOPERATED WITH THE
DEFENDANT'S TESTIMONY WAS RELEVANT

We agree with defendant that the jury's deliberative

process was irreparably tainted by the strife that developed

between the foreperson and a group of nine jurors. This discord

overwhelmed the deliberative process with extraneous matters and

irreparably undermined the reliability of the verdict. The

steps the trial judge took to address this situation, while

well-intended, impermissibly intruded into the jury's autonomous

role as judges of the facts. Our analysis is guided by the

following principles:

[A defendant's] right to a jury trial
is one of the founding principles of our
Republic and is guaranteed by both the Sixth
Amendment of the Constitution of the United
States, United States v. Gagnon, 470 U.S.

54 A-3458-13T1
522, 526, 105 S. Ct. 1482, 1484, 84 L. Ed.
2d 486, 490 (1985), and Article I, Paragraph
10 of the New Jersey Constitution, State v.
A.R., 213 N.J. 542, 557 (2013). As the
guardian of that guarantee, the trial judge
is entrusted with the responsibility of
controlling courtroom proceedings and is
bounded by the law and the rules of the
court. State v. Tedesco, 214 N.J. 177, 188-
89 (2013).

A jury verdict must be guided by
correct legal instructions from the trial
judge and unaffected by matters extraneous
to the evidence presented at trial. Thus,
"[e]rroneous instructions on matters
material to the juror's deliberations are
presumed to be reversible error." State v.
Allen, 308 N.J. Super. 421, 431 (App. Div.
1998) (quoting State v. Grunow, 102 N.J.
133, 148 (1986)). Although granting a
mistrial in a criminal case "is an
extraordinary remedy[,]" the trial judge is
bound to grant this relief when it is
necessary "'to prevent an obvious failure of
justice.'" State v. Yough, 208 N.J. 385, 397
(2011) (quoting State v. Harvey, 151 N.J.
117, 205 (1997)).

The role of the jury as the judges of
facts is predicated on the integrity of the
deliberative process. State v. Corsaro, 107
N.J. 339, 346 (1987). In those cases where
the jury announces an inability 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. See State v. Ramseur,
106 N.J. 123, 300-05 (1987), cert. denied,
508 U.S. 947, 113 S. Ct. 2433, 124 L. Ed. 2d
653 (1993). Beyond this, any further
direction from the judge to continue
deliberations, especially in the absence of

55 A-3458-13T1
 a reminder of the right to return a non-
unanimous verdict, could be viewed as
coercive. Figueroa, supra, 190 N.J. at
(citing State v. Hunt, 115 N.J. 330, 382-85
(1989)).

In determining the propriety of a trial
court's response to a jury's inability to
reach a unanimous verdict, our Supreme Court
has identified two principal concerns: (1)
whether the supplemental instruction has the
capacity to improperly influence the
dissenting jurors to change their votes; and
(2) whether "the weighty role that the judge
plays in the dynamics of the courtroom"
improperly coerced the jury into returning a
verdict. Id. at 237-38.

[State v. Dorsainvil, 435 N.J. Super. 449,
480-81 (App. Div. 2014).]

Depending on the circumstances, "even a general inquiry by

the judge about deliberations may present the possibility of

coercion." Figueroa, supra, 190 N.J. at 238. Adhering to these

principles, we have also condemned any measures taken by a trial

judge to "'undo a jury deadlock' by 'focus[ing] upon possibly

the weakest links in the chain locking the jury in disagreement,

namely, the minority holdouts on the jury.'" State v. Nelson,

304 N.J. Super. 561, 565-66 (App. Div. 1997) (quoting Czachor,

supra, 82 N.J. at 398). "Thus, when instructing a jury that

reports being deadlocked, a trial judge 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

56 A-3458-13T1
shared by a majority of the deliberating jurors." Dorsainvil,

supra, 435 N.J. Super. at 481.

Here, the record is replete with instances showing the

trial judge repeatedly communicated to the jury a clear message

favoring those jurors who were willing to continue deliberating

and characterizing the one juror who expressed a dissenting

point of view as an "obstructionist." This judicial bias in

favor of unanimity ultimately manifested itself in the judge's

taking the extraordinary action of stripping juror number 1 of

her role as foreperson under Rule 1:8-4, and bestowing that

title and commensurate responsibilities to juror number 2.

Although the judge acted to facilitate the jury's deliberations,

his decision was legally flawed in a number of ways.

The judge's first legally misguided step was in the manner

he selected to respond to the note sent by the group of nine

jurors on the second day of deliberations. Rule 1:8-4 does not

define the duties of a jury's foreperson. However, the Model

Charge for Appointing the Foreperson approved by the Supreme

Court on January 14, 2013, provides the definition the trial

judge correctly gave here at the time he selected juror number 1

as the foreperson in accordance with Rule 1:8-4:

Juror # _____ you are the foreperson of
the jury because of your position in the
jury box. You will preside over the
deliberations and tell us the verdict when

57 A-3458-13T1
 reached. Your vote carries no greater
weight than that of any other deliberating
juror.

It is your responsibility to lead
deliberations. It is also your
responsibility to tell us what the verdict
is when the jury has reached it. When you
come out with your verdict, please resume
the seats you now have. We will make
certain everyone is here. We will then ask
the foreperson to stand to confirm that you
have arrived at a verdict.

We will read each charge and will ask
the foreperson what the verdict is as to
each. The foreperson will answer with the
verdict on each charge. We then poll each
of the deliberating jurors to confirm his or
her agreement with the verdict announced by
the foreperson.

[Model Jury Charge (Criminal), "Judge's
Instructions for Selecting and Charging
Alternates and Appointing Foreperson"
(2013).]

This charge gives the foreperson and his or her fellow

deliberating jurors a clear definition of the function of the

foreperson and the scope of the administrative functions the

court expects this person to perform. The first thing the

charge mentions is why the court chose this particular

individual to serve in this capacity: (1) you are the foreperson

of the jury because of your position in the jury box: (2) the

charge then makes clear that the foreperson's vote carries no

greater weight than that of any other deliberating juror: (3)

finally, the charge clearly states the foreperson has just two

58 A-3458-13T1
basic responsibilities or duties (a) to lead deliberations; and

(b) to tell the trial court what the verdict is when the jury

has reached it.

The problem here concerned the meaning of "to lead

deliberations." The trial judge properly sought guidance from

Barber v. ShopRite of Englewood & Assocs., Inc., supra, the only

reported decision from this court that addressed this issue

directly. The underlying facts in Barber concerned a civil

action filed by the plaintiff to recover compensatory damages

for injuries she sustained from a fall on the defendant's

premises. Barber, supra, 406 N.J. Super. at 38-39. The case

was tried before a civil jury that found the defendant negligent

and awarded the plaintiff $876,000 in compensatory damages. Id.

at 37.

The defendant Shoprite appealed. While the appeal was

pending, we granted Shoprite's motion to supplement the trial

record to include an article that appeared in the New Jersey Law

Journal eight months after the jury had returned its verdict in

favor of the plaintiff. Ibid. The article was written by

"Robert Martin, who served as juror number one and foreperson

during the trial. During voir dire, Martin disclosed that he

was a New Jersey State Senator, a full-time professor of law and

a practicing lawyer." Ibid. We "remanded the matter to the

59 A-3458-13T1
trial court to conduct a hearing and take testimony from Martin

and the other jurors with respect to Martin's article." Ibid.

In this article, Martin described his impressions of the

jury selection process, he bemoaned the inherent inconveniences

imposed on those who are compelled to serve; and chastised the

insensitivity and incompetence of those entrusted to care for

the jurors. Id. at 46. With respect to the deliberations,

Martin wrote that despite his best efforts to conceal or

underplay his status as a member of the State Legislature, legal

professor, and practicing lawyer, the other jurors looked to him

for legal guidance.

Over the course of our deliberation I became
increasingly aware that other jurors were
relying on me for assistance, especially in
dealing with abstract legal concepts and
procedural issues. For example, I was asked
to clarify what the judge meant by
"proximate cause" and its significance in
proving a negligence claim. I do think my
familiarity with the law proved helpful to
fellow jurors; but I remain undecided as to
whether it's advisable to have a lawyer
serve on a jury--especially as its foreman.
I am convinced that in our case my opinions
swayed other jurors and were extremely
influential in the final outcome.

[Ibid.]

On remand, the trial court followed our directions and

conducted an evidentiary hearing in which Martin and other

members of the jury testified and confirmed the undue influence

60 A-3458-13T1
Martin had on the deliberative process. In addressing this

outcome, we made the following comments with respect to the role

of the foreperson in a jury:

Martin was designated foreperson of the jury
by virtue of being juror number one--not by
his positions as state senator, law
professor or lawyer. As foreperson, his
role was to maintain order in the
deliberations, marshal the jurors' votes on
the issues presented on the verdict sheet
and to render the verdict on behalf of the
jurors. Otherwise, the jury foreperson is
only one vote of six and his opinions have
no greater weight than those of the other
jurors. It is not the role of the foreperson
to explain legal concepts to the other
jurors.

In short, our review of the entire record in
this case convinces us that Martin's
explanations to the jury had a "tendency" to
influence the verdict. That "tendency,"
coupled with the cumulative trial errors,
deprived defendant of a fair trial.
Accordingly, we are constrained to reverse
. . . .

[Id. at 56 (first emphasis added) (citations
omitted).]

Thus, the role of the foreperson we described in Barber was

reaffirmed by the description approved by the Supreme Court in

the Model Charge. In the course of deliberations, the

foreperson should be permitted to carry out these

responsibilities while at the same time holding and expressing a

point of view that is entirely at odds with those held by the

remaining members of the jury. A juror has the right to stand

61 A-3458-13T1
firm on his or her convictions and decline to deliberate any

further.

We do not fault the trial court's decision to accept the

initial note from the group of nine jurors with the cryptic

message "re deliberations." It is the trial judge's duty to

investigate any claims that may affect the integrity of the

jury's deliberations. See Dorsainvil, supra, 435 N.J. Super. at

487. However, we hold the trial judge erred in deciding to rely

on a "spokesperson" to represent the views of the group. Under

these circumstances, the judge should have interviewed each

juror individually. See State v. Brown, 442 N.J. Super. 154,

183-84 (App. Div. 2015). This approach would have permitted the

judge to gauge the extent of the problem in a private setting

conducive to promote candor and honesty and less vulnerable to

any intimidation or unintended pressures associated with group-

thinking.

By relying only on juror number 10's description of juror

number 1's alleged improprieties, the trial judge ran the risk

of receiving a skewed account of the events that led to the

conflict. By engaging in a lengthy sidebar discussion with

juror number 10, the judge and counsel excluded the jurors he

was appointed to represent and unintentionally vested this juror

with the court's imprimatur, elevating his status within the

62 A-3458-13T1
jury. The prejudice caused by this approach to defendant's

right to a fair trial was revealed when the trial judge accepted

at face value juror number 10's description of juror number 1's

conduct as "obstructionist" and stripped her of her role as

foreperson of the jury.

Under these circumstances, the trial judge's reliance on

our decision in Rodriguez to strip juror number 1 of her title

as foreperson was misplaced. The defendant in Rodriguez was

tried before a jury and convicted of "fourth degree aggravated

assault (N.J.S.A. 2C:12-1b(4)); third degree terroristic threats

N.J.S.A. 2C:12-3); second degree possession of a handgun for an

unlawful purpose (N.J.S.A. 2C:39-4a); and fourth degree

possession of a weapon (Molotov cocktail) for unlawful purposes

N.J.S.A. 2C:39-4(d))." Rodriguez, supra, 254 N.J. Super. at

341. After deliberations, the jury reported it had reached a

unanimous verdict on all eleven counts in the indictment. Id.

at 347.

The foreperson initially read the verdict sheet in

Rodriguez without incident. "After the not guilty response to

count nine (possession of a handgun), the prosecutor brought a

disruption in the jury box to the attention of the judge."

Ibid. Although the trial judge acknowledged the disruption, he

63 A-3458-13T1
allowed the foreperson to continue to read the verdict until the

end. Ibid. The judge then made the following statement:

I have to make an observation, we heard what
we heard and we put on the record, but I
seem, [sic] unless I'm wrong, some shaking
their heads, I would suggest and I think I
take it upon myself as a Judge and I think I
have the authority to do that, that you go
back and that you look at it, not that you
look at your verdict because obviously if
that's your verdict, that's up to you, I'm
not interfering with that, I want you to
know that, but apparently there has been
shaking of heads. I would like you to go
back and resolve whatever you have to
resolve concerning that and then come back
out again and I would ask you to do that,
please.

[Ibid. (second and third emphasis added).]

The jury returned to the jury room as directed. When they

returned to the courtroom after a brief recess, the judge

emphasized he "did not mean to intimidate anyone by sending them

back, but that the shaking of some of the jurors' heads

indicated a lack of unanimity." Ibid. The foreperson again

began to read the verdict, presumably as reflected in the

verdict sheet. After the foreperson finished, counsel requested

the jurors be polled. This immediately revealed that juror

number 8 did not agree with the verdict as reported by the

foreperson. The trial judge again sent the jury back to the

jury room to confer. Ibid.

64 A-3458-13T1
 "Shortly thereafter, the judge received a note from the

jury asking whether the [foreperson] could be changed." Ibid.

Overruling defense counsel's objection, the trial judge allowed

the jury to elect a new foreperson. Ibid. The judge then made

the following statement to the jury: "I feel that in spite of

what the rule says, that there are always exceptions, so long as

they're done for the good, and as long as they're done for truth

and justice . . ." Id. at 347-48. The jury retired to the jury

room one more time to continue deliberations. Id. at 348.

After returning from a brief deliberation, the new foreperson

read the new verdict finding the defendant guilty "on counts

three, four, nine and ten. The final verdict on count eight was

changed from guilty to not guilty. The jury was polled and the

verdict was unanimous." Ibid. (emphasis added).

Based on these unusual facts, we affirmed the trial judge's

decision to allow the jury to elect a new foreperson. We

rejected the defendant's argument "that the trial judge's ruling

that the jury could elect a new foreperson violated [Rule] 1:8-4

and may have served to coerce the original foreperson into

guilty verdicts in violation of his constitutional right to a

unanimous verdict by an impartial jury." Id. at 349-50.

Although we acknowledged that the plain language in Rule 1:8-4

"does not contemplate the replacement of a juror, it was

65 A-3458-13T1
certainly within the ambit of the judge's discretion," to take

this action. We noted that Rule 1:1-2 "authorizes relaxation of

the rules, to appoint a new foreperson where there were obvious

difficulties with the member of the jury originally designated."

Id. at 350 (emphasis added). We also emphasized that by

correcting the obvious mistake in the original two misread

verdicts the defendant actually benefited from one less

conviction. Ibid. "Hence, we perceive[d] no coercive influence

on the original foreperson or on any juror by either the

designation of a new foreperson or the additional

deliberations." Ibid. (emphasis added).

The circumstances the trial judge faced in Rodriguez stand

in sharp contrast to what occurred in this case. Here, on the

second day of deliberations, the jury reported it had reached

"an impasse" based on eleven jurors wanting to continue

deliberating and one juror that did not. The trial judge's

decision to remove juror number 1 from the position of

foreperson was a direct response to his assumption that she was

the juror who was unwilling to continue deliberating. The

record reflects the judge characterized juror number 1 as an

"obstructionist" based only on juror number 10's revelations.

The decision to remove juror number 1 of her role as foreperson

was thus capable of being perceived as retaliatory and intended

66 A-3458-13T1
to coerce her into changing her stance against reaching a

unanimous verdict. This is precisely the type of coercive

action the Supreme Court declared unacceptable in Figueroa.

In State v. Musa, 222 N.J. 554, 566 (2015), our Supreme

Court declared that "the removal of a juror because he is

disputatious and does not share the views of other jurors would

undermine the very essence of the free and open debate that is

expected of jury deliberations." Here, the judge's decision to

strip juror number 1 of her role as foreperson merely because of

her perceived stance on deliberations, had the same potential

chilling effect on her right to disagree with the views espoused

by the other eleven jurors.

Under Rule 1:8-2(a), "a deliberating jury in a criminal

action shall consist of 12 persons," unless otherwise stipulated

by the parties at any time before the jury returned the verdict.

Pursuant to Rule 1:8-9, "In every trial by jury the verdict

shall be returned by the jury to the judge in open court. The

verdict shall be unanimous in all criminal actions [.]" Thirty-

six years ago, our Supreme Court decided in Czachor to abandon

the then prevailing Allen10 charge in favor of the model charge

suggested by the American Bar Association. The principal

10
Allen v. United States, 164 U.S. 492, 17 S. Ct. 154, 41 L. Ed.
528 (1896).

67 A-3458-13T1
concern that drove the Court's decision in Czachor was the

intolerance of dissent expressed in the Allen charge.

It is fair to say that the typical Allen
charge does not simply remind jurors of
their duty to cooperate in collective
deliberations. It has a rather different
thrust. The charge is intended to undo a
jury deadlock. It tends therefore to focus
upon possibly the weakest links in the chain
locking the jury in disagreement, namely,
the minority holdouts on the jury. Hence,
the charge usually admonishes specifically
and pointedly only those in the minority to
reconsider their beliefs in light of the
adverse position held by the majority.

. . . .

An instruction that explicitly directs only
the dissenters to doubt the reasonableness
of their convictions is inherently one-
sided.

[Czachor, supra, 82 N.J. at 398-99 (emphasis
added).]

Dissent against unanimity, with all its commensurate

inconvenience, is a constitutionally protected position for a

juror to take in the course of deliberations. It is a position

a defendant is entitled to rely on and one the court is

obligated to protect as ancillary to the State's obligation to

prove defendant's guilt beyond a reasonable doubt to a unanimous

jury. As noted by Justice Albin in Musa: "Although jurors are

urged to attempt to reach consensus, discord, not just assent,

is a natural part of the deliberative process. A court may not

68 A-3458-13T1
play any role in jiggering a jury panel's composition for the

purpose of imposing conformity." Musa, supra, 222 N.J. at 566.

Here, the trial judge's well-intended preoccupation with

promoting unanimity undermined defendant's right to a fair trial

and overwhelmed the jury's autonomous role as the judges of the

facts.

Finally, we are compelled to comment on the judge's

decision to agree to meet with the group of nine jurors.

Confronted with allegations of impropriety in the deliberative

process, the judge should have interviewed each juror separately

and

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.

[State v. R.D., 169 N.J. 551, 558 (2001)
(citations omitted).]

Here, the judge's undue reliance on juror number 10's version of

events left a number of important issues unaddressed. Key among

them is the judge's failure to interview the two jurors who

chose not to join the group of nine's criticism of the way juror

number 1 was discharging her responsibilities as foreperson.

Interviewing these two jurors separately could have given the

69 A-3458-13T1
judge a valuable insight independent of the views heard from

juror number 10.

It is well known that jury deliberations can be boisterous

and contentious. However, as the Court noted in Figueroa and

recently reaffirmed in Ross, a trial judge's interactions with

the jury must be "guided by a concern for the weighty role that

the judge plays in the dynamics of the courtroom." State v.

Ross, 218 N.J. 130, 145 (2014) (quoting Figueroa, supra, 190

N.J. at 238). Unlike interviewing an individual juror in

response to a personal matter or concern, a judge's decision to

meet with a group of jurors in response to how deliberations are

being conducted may thrust the judge in the midst of an internal

debate over which the judge cannot be viewed as a partisan.

As this case illustrates, any attempt by the judge to

mediate the dispute or ameliorate the hostility only sucks the

court deeper into the vortex. The deliberative process is

designed to be confidential to promote the free exchange of

ideas and points of view. Musa, supra, 222 N.J. at 568. Other

than charging the jury with the supplemental instructions

approved by the Supreme Court in Czachor which, inter alia,

exhorts each juror "not [to] surrender your honest conviction as

to the weight or effect of evidence solely because of the

opinion of your fellow jurors, or for the mere purpose of

70 A-3458-13T1
returning a verdict," a trial judge has no role to play in

facilitating the jury's discussions or promoting unanimity.

Czachor, supra, 82 N.J. at 405 n.4 (quoting ABA Project on

Minimum Standards for Criminal Justice, Standards Relating to

Trial by Jury, § 5.4 cmt., at 146-47 (Approved Draft 1968)).

Unfortunately, the record we have taken the time to recite at

length shows the trial judge asking jurors on more than one

occasion to "tell me what you think I should need to know to try

to move this towards a verdict."

The decision to grant a mistrial rests within the sound

discretion of the trial judge. R.D., supra, 169 N.J. at 558.

We are satisfied the record here shows the trial judge erred in

the exercise of this discretion when he denied defendant's

applications for a mistrial. Because this issue is sufficient

to warrant the reversal of defendant's conviction, we do not

reach the remaining arguments raised by defendant in this

appeal.

Reversed and remanded for a new trial. We do not retain

jurisdiction.

71 A-3458-13T1