State of New Jersey v. Kalil Griffin

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3491-15T2

STATE OF NEW JERSEY,
APPROVED FOR PUBLICATION
Plaintiff-Appellant, February 27, 2017

v. APPELLATE DIVISION

KALIL GRIFFIN,

Defendant-Respondent.
_____________________________

Argued October 6, 2016 - Decided February 27, 2017

Before Judges Alvarez, Accurso and Higbee.1

On appeal from Superior Court of New Jersey,
Law Division, Monmouth County, Indictment
No. 12-05-0857.

Mary R. Juliano, Assistant Prosecutor,
argued the cause for appellant (Christopher
J. Gramiccioni, Monmouth County Prosecutor,
attorney; Ms. Juliano, of counsel and on the
brief).

James K. Smith, Jr., Assistant Deputy Public
Defender, argued the cause for respondent
(Joseph E. Krakora, Public Defender,
attorney; Mr. Smith, of counsel and on the
brief).

1
Hon. Carol Higbee participated in the panel that decided this
appeal. The opinion was approved for filing prior to Judge
Higbee's death on January 3, 2017.
 The opinion of the court was delivered by

ACCURSO, J.A.D.

Hours after the jury convicted defendant Kalil Griffin of

felony murder, N.J.S.A. 2C:11-3a(3); first-degree robbery,

N.J.S.A. 2C:15-1; second-degree unlawful possession of a

handgun, N.J.S.A. 2C:39-5b; and second-degree possession of a

handgun for an unlawful purpose, N.J.S.A. 2C:39-4a, defense

counsel received a call from one of the jury alternates. The

alternate claimed that during the trial, several jurors

routinely met to discuss the case notwithstanding the judge's

instructions that they not do so. She claimed she heard the

juror who organized these discussions say he was going to make

sure defendant did not "get off" like his co-defendant.

The jurors were aware the co-defendant had been acquitted

of the same charges in an earlier trial. Not only had they been

advised of that fact in opening statements, the co-defendant

testified on behalf of the State that he had been tried and

acquitted. The alternate indicated to defense counsel that the

jurors participating in the discussions had decided to vote

guilty before they retired for deliberations. She claimed two

other jurors also heard these discussions, prompting one of them

to ask that she be allowed to serve as an alternate and not

participate in deliberations.

2 A-3491-15T2
 Defense counsel recounted his conversation with the caller

in a certification filed in support of his motion for a "hearing

on juror misconduct" filed several days after the verdict.2 The

2
Defense counsel's certification stated in pertinent part:

1. I represent the defendant in the above
referenced matter.

2. On October 22, 2015[,] Kalil Griffin was
convicted by jury of felony murder . . . .

3. Shortly after the verdict, I received a
phone call from an alternate juror named
[the alternate].

4. [The alternate] indicated that during
the testimonial phase of the trial[,]
several jurors, apparently organized by
Juror #2, . . . , would meet downstairs and
routinely discuss the case despite the
[c]ourt's admonitions.

5. [Juror #2] was heard to say that he was
going to make sure this defendant (Griffin)
would not "get off" like the codefendant.

6. [The alternate] indicated that [Juror
#2's] organized group of jurors decided to
vote guilty even before summations were
heard.

7. This prompted Juror #3, . . . , to
request to be an alternate.

8. Also, . . . , another alternate juror[,]
heard these improper conversations between
[Juror #2] and other jurors that took place
prior to deliberation.

9. Coincidentally, or perhaps not so,
another juror called the [c]ourt on the day
(continued)

3 A-3491-15T2
trial judge who presided over the four-week trial unfortunately

retired without hearing the motion. Another judge heard the

motion almost five months after entry of the verdict. At the

conclusion of argument, that judge determined, based on the

"irregularities alleged," to interview the caller and the other

alternate who allegedly heard the improper conversations, on the

record with counsel present.3

We granted the State's emergent application for leave to

file an interlocutory appeal from the ensuing order. Applying a

(continued)
of deliberations to say she had car trouble
and could not make it to court.

10. For these reasons, it is urged that this
[c]ourt conduct a hearing on juror
misconduct to determine if certain jurors
pressed for a guilty verdict "prior to
deliberations[.]" See State v. McLaughlin,
310 N.J. Super. 242 (App. Div. 1998) and
State v. Scherzer, 301 N.J. Super. 363 (App.
Div. 1997).

11. I did not solicit any of the above
allegations from [the alternate], nor have I
spoken to any jurors named in this
certification.
3
The judge initially indicated he would also interview the
deliberating juror who had asked to serve as an alternate, "not
as to her deliberations but why she" asked the trial judge to
allow her to serve as an alternate. The judge apparently
reconsidered that decision as his order limits the interviews to
the two alternate jurors.

4 A-3491-15T2
de novo standard of review,4 see Nicholas v. Mynster, 213 N.J.

463, 478 (2013), we now reverse, finding no good cause for the

court to interview these two alternate jurors post-verdict. See

R. 1:16-1; State v. LaFera, 42 N.J. 97, 105-07 (1964).

As the Supreme Court has recently made abundantly clear,

"under no circumstances may post-verdict discussions

occur between the court and discharged jurors, unless those

discussions are part of a hearing ordered on good cause shown

pursuant to Rule 1:16-1."5 Davis v. Husain, 220 N.J. 270, 274

(2014). "Calling back a jury for questioning following

discharge is an 'extraordinary procedure,' to be utilized 'only

4
The issue we review is whether there was good cause to permit
the post-trial interrogation of jurors pursuant to Rule 1:16-1
based on defense counsel's certification relating the
allegations of an alternate juror. The question presented is
one of law on undisputed facts making de novo review
appropriate. We thus reject defendant's view that we should be
applying an abuse of discretion standard applicable to a judge's
mid-trial determination of the appropriate course of action upon
a showing of premature deliberations by jurors. See State v.
McLaughlin, 310 N.J. Super. 242, 256-57 (App. Div.), certif.
denied, 156 N.J. 381 (1998).
5
Rule 1:16-1 provides:

Except by leave of court granted on good
cause shown, no attorney or party shall
directly, or through any investigator or
other person acting for the attorney,
interview, examine, or question any grand or
petit juror with respect to any matter
relating to the case.

5 A-3491-15T2
upon a strong showing that a litigant may have been harmed by

jury misconduct.'" Id. at 279 (quoting State v. Athorn, 46 N.J.

247, 250, cert. denied, 384 U.S. 962, 86 S. Ct. 1589, 16 L. Ed.

2d 674 (1966)).

Although the Court's reminder is recent, the reasons for

not permitting inquiry into a jury's secret deliberations for

the purpose of invalidating a verdict were established many

years ago.

If verdicts could be easily set aside as a
result of an investigation into secret jury
deliberations, disappointed litigants would
be encouraged to tamper with jurors, to
harass them and to employ fraudulent
practices in an effort to induce them to
repudiate their decisions. Moreover, an
open invitation would be extended to any
disgruntled juror who might choose to
destroy a verdict to which he had previously
assented.

[Athorn, supra, 46 N.J. at 250.]

Clearly, jury secrecy is essential to protect the

deliberative process itself. Id. at 251. "A jury deliberates

in secrecy to encourage each juror to state his thoughts, good

and bad, so that they may be talked out." LaFera, supra, 42

N.J. at 106. "Freedom of debate might be stifled and

independence of thought checked if jurors were made to feel that

their arguments and ballots were to be freely published to the

6 A-3491-15T2
world." Clark v. United States, 289 U.S. 1, 13, 53 S. Ct. 465,

469, 77 L. Ed. 993, 999 (1933).

The United States Supreme Court described the tension

facing a court presented with the post-trial affidavit of a

juror claiming misconduct of himself or other members of the

jury as forcing a choice "between redressing the injury of the

private litigant and inflicting the public injury which would

result if jurors were permitted to testify as to what had

happened in the jury room." McDonald v. Pless, 238 U.S. 264,

267, 35 S. Ct. 783, 784, 59 L. Ed. 1300, 1302 (1915).

Although acknowledging "the argument in favor of receiving

such evidence is not only very strong but unanswerable – when

looked at solely from the standpoint of the private party who

has been wronged by such misconduct," the Court found permitting

such evidence "'would open the door to the most pernicious arts

and tampering with jurors. The practice would be replete with

dangerous consequences. It would lead to the grossest fraud and

abuse and no verdict would be safe.'" Id. at 268, 35 S. Ct. at

784-85, 59 L. Ed. at 1302 (quoting Cluggage v. Swan, 4 Binn.

150, 158 (Pa. 1811); Straker v. Graham, 4 M. & W. 721, 725-26,

150 Eng. Rep. 1612, 1613-14 (1839)) (internal quotation marks

omitted).

7 A-3491-15T2
 The Court explained the rule, which is now almost

universally applied, against receiving such evidence from jurors

is ultimately "based upon controlling considerations of a public

policy which in these cases chooses the lesser of two evils."

Id. at 267, 35 S. Ct. at 784, 59 L. Ed. at 1302; see also Tanner

v. United States, 483 U.S. 107, 120, 107 S. Ct. 2739, 2747, 97

L. Ed. 2d 90, 106 (1987) ("There is little doubt that post-

verdict investigation into juror misconduct would in some

instances lead to the invalidation of verdicts reached after

irresponsible or improper juror behavior. It is not at all

clear, however, that the jury system could survive such efforts

to perfect it.").

"The essence of R. 1:16-1 is recognition of the need to

'insure free debate in cases to come,' and to 'prevent the

unsettling of verdicts after they have been recorded.'" State

v. Loftin, 287 N.J. Super. 76, 109 (App. Div.) (internal

quotations omitted), certif. denied, 144 N.J. 175 (1996). The

rule's prohibitions, however, are not absolute, because "cases

do arise where 'the plainest principles of justice' demand that

a new trial should be directed upon a proper showing." Athorn,

supra, 46 N.J. at 251 (quoting Mattox v. United States, 146 U.S.

140, 148, 13 S. Ct. 50, 52, 36 L. Ed. 917, 920 (1892)).

8 A-3491-15T2
 The Court has recognized two exceptions to the general rule

against disturbing a jury's verdict because of what a juror may

have said during deliberations, both of which would constitute

"good cause" under Rule 1:16-1 to call back a discharged juror

for questioning: first, where a juror "informs or misinforms

his or her colleagues in the jury room about the facts of the

case based on his personal knowledge of facts not in evidence"

and second, where racial or religious bigotry is manifest in

deliberations. State v. Koedatich, 112 N.J. 225, 288 (1988),

cert. denied, 488 U.S. 1017, 109 S. Ct. 813, 102 L. Ed. 2d 803

(1989).

The strictness with which these exceptions are applied is

best demonstrated by the facts of Athorn. Athorn was a Newark

police officer convicted by a jury of extortion and misconduct

in office. 46 N.J. at 249. About a month after the verdict,

the prosecutor advised the court he had been contacted by a

juror in the case claiming the verdict had been improperly

rendered. Ibid. The trial judge summoned the juror to appear

in open court in the presence of the prosecutor and defense

counsel to hear the juror's allegations. Ibid.

The juror asserted several improprieties. He claimed that

some jurors asserted "cops take bribes," citing newspapers as a

source, that other jurors harangued him when he refused to vote

9 A-3491-15T2
guilty, and that he was tricked into finally voting to convict

by a fellow juror "who seemed to agree with him that the

defendant was innocent but who then cast his vote for guilty."

Id. at 249-50. The juror also claimed to have misunderstood the

trial court's instructions regarding the necessity of a

unanimous verdict. Id. at 250. He claimed he had never heard

of a hung jury and that had he realized the possibility, he

would never have changed his vote to guilty. Ibid. Based on

the juror's statements, the trial judge determined to interview

the remaining jurors about the allegations and issued an order

to that effect. Ibid.

As in this case, we stayed the order in Athorn and granted

the prosecution's motion for leave to appeal. Ibid. While the

case was pending in this court, the Supreme Court certified the

case for direct review and reversed. Id. at 249-50.

The Court concluded the juror's allegations, "even if they

were to be substantiated by the testimony of the other jurors,

would [not] be a sufficient basis on which the conviction could

be set aside," and thus the order recalling the jurors had to be

reversed. Id. at 250. Because nothing in the juror's testimony

"suggest[ed] that a juror had expressed personal knowledge of

any facts concerning the defendant which were not adduced in

evidence," and the statement that "cops take bribes," could not

10 A-3491-15T2
be read as any "manifestations of bias against the defendant

because he was a police officer," the Court found "no reason for

departing from the general rule" against inquiring into jury

deliberations. Id. at 252.

Here, as in Athorn, because the alternate's allegations as

set forth in defense counsel's certification, even if

substantiated, would not support setting aside the conviction,

the trial court erred in ordering the discharged jurors back for

questioning. There is nothing in defense counsel's

certification recounting his conversation with the alternate to

suggest that any juror expressed personal knowledge of facts

about defendant or his co-defendant's acquittal not adduced in

evidence. Neither did the alternate claim, or even suggest,

that juror No. 2's comment "that he was going to make sure this

defendant (Griffin) would not 'get off' like the codefendant,"

had any racial overtone. Although defense counsel advised the

judge hearing the motion that the alternate is African-American,

as is defendant, and that the remainder of the jurors were

white, we can draw nothing from those facts, and certainly not

that racial bigotry was manifest in the jury's deliberations.

Defendant has thus not presented any proof of actual bias

infecting the jury's deliberations.

11 A-3491-15T2
 Defendant argues on appeal that evidence of outside

influence on the jury and racial or religious animus are not the

only exceptions permitting inquiry into jury deliberations. He

contends the Court has also set aside a jury verdict when jurors

expressed an intent to vote guilty before hearing all the

evidence, and emphasizes the allegations here relate to juror

misconduct occurring prior to deliberations. Finally, he notes

the judge's order, limited as it is to calling back only non-

deliberating jurors, does not infringe the secrecy of

deliberations and should be upheld for that reason as well. We

reject those arguments.

The case on which defendant relies in asserting that a

juror's expressed intention to vote guilty before hearing all

the evidence provides "good cause" under Rule 1:16-1 to question

jurors about misconduct is State v. Loftin, 191 N.J. 172, 196

(2007). Loftin, however, a capital case in which a non-

deliberating juror made racially freighted comments to co-

workers during the guilt-phase of the defendant's trial, is not

a case arising under Rule 1:16-1.6 Id. at 179, 185.

6
Although Loftin's post-conviction relief counsel made an
application for the trial court to interview the guilt-phase
jurors pursuant to Rule 1:16-1, the request was not based on
information received from a juror post-verdict but on the trial
court's failure to immediately remove the biased juror at trial
and voir dire the remaining jurors regarding his comments.
(continued)

12 A-3491-15T2
 In Loftin, the court was advised in the course of the trial

that a white juror told two African-American co-workers he was

going to the hardware store to buy a strong rope to hang the

defendant, an African-American man charged with murdering a

white man. Id. at 179, 183-84. Accepting the juror's

representation that he had not prejudged the defendant's guilt,

the trial judge declined to remove him from the jury. Id. at

179. The juror was permitted to sit with his fellow jurors

throughout the guilt-phase trial, ultimately serving as an

alternate. Ibid.

Loftin was convicted and sentenced to death. Ibid. The

Court affirmed the conviction and sentence on direct appeal,

State v. Loftin, 146 N.J. 295, 318 (1996) (Loftin I), and upheld

Loftin's sentence on proportionality review, State v. Loftin,

157 N.J. 253, 266 (Loftin II), cert. denied, 528 U.S. 897, 120

S. Ct. 229, 145 L. Ed. 2d 193 (1999).

On appeal from the denial of Loftin's petition for post-

conviction relief, however, the Court vacated Loftin's

conviction and death sentence and remanded for a new trial,

(continued)
Loftin, supra, 191 N.J. at 199. The precise holding of the case
is "that the deficient performances of both trial and appellate
counsel [in failing to adequately address the juror's bias and
its effect on the panel's impartiality] denied defendant the
assistance of reasonably competent counsel guaranteed to him
under Article I, Paragraph 10 of our State Constitution." Ibid.

13 A-3491-15T2
finding "no room in a capital trial for a juror who expresses a

preconceived opinion of a defendant's guilt," made "[e]ven more

alarming . . . when the juror's remarks prejudging guilt also

suggest racial bias." Loftin, supra, 191 N.J. at 179-80. The

Court found the trial judge erred in not removing the juror from

the jury panel as soon as the court confirmed he made the

statement: "'I'm going to the hardware store to get me a good

rope so when we hang [defendant], it won't break,'" and in

failing "to ensure that he did not infect the impartiality of

the entire panel." Id. at 191-92.

We think Loftin clearly distinguishable from the situation

that confronted the trial court here. Leaving aside that Loftin

was a capital case "in which heightened standards of procedural

fairness are applied," the misconduct of the juror there was

brought to the court's attention mid-trial. Id. at 192. A

trial judge's obligations vary significantly depending on when

the allegation of juror misconduct is made.

In order to protect a criminal defendant's Sixth Amendment

right to trial by an impartial jury, a judge faced with an

allegation of juror misconduct before the verdict "must act

swiftly to overcome any potential bias and to expose factors

impinging on the juror's impartiality." State v. R.D., 169 N.J.

14 A-3491-15T2
551, 558 (2001); see also State v. Bisaccia, 319 N.J. Super. 1,

14 (App. Div. 1999).

The court is obliged to interrogate the
juror, in the presence of counsel, to
determine if there is a taint; if so, the
inquiry must expand to determine whether any
other jurors have been tainted thereby. The
trial court must then determine whether the
trial may proceed after excusing the tainted
juror or jurors, or whether a mistrial is
necessary.

[R.D., supra, 169 N.J. at 558.]

In contrast, a trial judge presented with a complaint of

juror misconduct post-verdict may invoke the "extraordinary

procedure" of interrogating jurors "only upon a strong showing

that a litigant may have been harmed by jury misconduct."

Athorn, supra, 46 N.J. at 250. The distinction, of course,

being the entry of the verdict. The "strong policy reasons" of

preventing disappointed litigants from tampering with jurors and

disgruntled jurors from destroying a verdict have caused courts,

with defined exceptions, to refuse "'to accept from jurors, for

the purpose of impeaching a verdict, any evidence of the

discussion which they may have had among themselves while

considering their verdict.'" Koedatich, supra, 112 N.J. at 288

(quoting Athorn, supra, 46 N.J. at 251).

Thus, the holding in Loftin on which defendant relies, that

"a juror who has formed an unalterable opinion of the

15 A-3491-15T2
defendant's guilt or innocence must be excused from service on

the panel," 191 N.J. at 187, does not speak to whether a post-

verdict allegation that a juror formed such an opinion would

warrant a new trial. Indeed, the Court has held it insufficient

to overturn a verdict already rendered. LaFera, supra, 42 N.J.

at 110 (holding a juror having "reached what proved to be his

final view sometime during the trial and communicated that view

to two of his fellow jurors, does not warrant a new trial").

The Court in LaFera reasoned that a person

inevitably reacts to what he hears as he
hears it. He cannot avoid current
impressions however much he wills to resist
them. And although he may think those
impressions are final, he cannot really know
that they will endure. We may assume that
many jurors begin the deliberations with
strong convictions as to how the case should
go, and then yield them to persuasion in the
jury room. We instruct jurors to refrain
from premature discussion in the hope that
they will enter upon their deliberations
with a maximum capacity to consider the
views of others, but we cannot say a juror
is guilty of misconduct because he reaches a
conclusion before ideally he should.

[Id. at 108-09.]

Thus, while acknowledging that a mistrial might be

appropriate if a court learns in the course of trial "that a

juror has expressed his view with apparent finality to fellow

jurors or persists in premature discussions with them despite

the court's instruction," the LaFera Court held such revelations

16 A-3491-15T2
after the verdict would not state sufficient grounds to

invalidate it or to call back jurors to interrogate them about

the comments. Id. at 109-10.

New Jersey courts have long recognized the distinction

between allegations of juror misconduct arising at trial and

those first alleged after entry of a verdict, and the dangers to

our system of justice posed by interrogating jurors about their

secret deliberations for the purpose of invalidating a verdict.

See State v. Harris, 181 N.J. 391, 503 (2004), cert. denied, 545

U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005)

(acknowledging the Court's repeated reaffirmance of the "high

bar" defendants must hurdle to show good cause under Rule 1:16-

1). Because the alternate here came forward with her complaint

about her fellow jurors only after entry of the verdict, Loftin

is inapposite. LaFera controls here.

Further, the Court's statement in LaFera that jurors who

begin deliberations with strong convictions may yet yield to the

persuasion of their fellow jurors, appears particularly apt

here. 42 N.J. at 108-09. Although the alternate claims she

heard juror No. 2 say "that he was going to make sure this

defendant (Griffin) would not 'get off' like the codefendant,"

and indicated that an "organized group of jurors decided to vote

guilty even before summations were heard," the State notes that

17 A-3491-15T2
the jury deliberated "for about a day and a half" before

announcing its unanimous verdict. The length of time the jurors

deliberated and the absence of a complaint by any of them as to

how those deliberations were conducted is inconsistent with the

alternate's charge that defendant's fate was pre-ordained based

on a comment made before deliberations had begun.

The complaining alternate did not participate in the jury's

deliberations and cannot say what transpired in the jury room

during those deliberations. Defendant's speculations about why

one of the deliberating jurors may have asked initially to serve

as an alternate and whether another alternate was truthful in

saying that car trouble prevented her from appearing, do not

provide good cause for the court to interrogate any of the

jurors after entry of the verdict. See State v. DiFrisco, 174

N.J. 195, 241 (2002) (affirming trial court's refusal to

interview jurors as affidavit submitted by defense counsel based

on conversation with alternate juror did not suggest jurors

actually considered inappropriate evidence during

deliberations), cert. denied, 537 U.S. 1220, 123 S. Ct. 1323,

154 L. Ed. 2d 1076 (2003).

We likewise do not accept defendant's arguments that "an

agreement" among some jurors made prior to deliberations to vote

guilty, provides good cause for the order entered here. First,

18 A-3491-15T2
the certification submitted by defense counsel does not mention

an agreement among jurors, and counsel sought a hearing only to

determine if certain jurors "pressed for a guilty verdict" prior

to deliberations. Second, although there is no doubt that a

prior agreement among jurors to be bound to a particular result

"when such agreement has the capacity to foreclose all

subsequent discussion, deliberation, or dissent among jurors" is

inappropriate, Shankman v. State, 184 N.J. 187, 200 (2005)

(discussing impermissible quotient verdict), defendant has

presented no proof that such an agreement existed among any of

the deliberating jurors. His speculations provide no basis for

post-trial voir dire pursuant to Rule 1:16-1. See State v.

Marshall, 148 N.J. 89, 280, cert. denied, 522 U.S. 850, 118 S.

Ct. 140, 139 L. Ed. 2d 88 (1997) (denying defendant's request to

contact jurors after discharge as "allegations of extraneous

influence lack any factual basis and rely on purest

speculation").

We further do not accept that the court having limited the

scope of its order to non-deliberating jurors, makes the policy

arguments against intrusion into a jury's secret deliberations

irrelevant. The prohibitions of Rule 1:16-1 are not limited to

deliberating jurors. See State v. Freeman, 223 N.J. Super. 92,

118-20 (App. Div. 1988) (affirming trial court's refusal to

19 A-3491-15T2
interview alternate juror pursuant to Rule 1:16-1), certif.

denied, 114 N.J. 525 (1989). The "good cause" requirements of

the rule apply equally to deliberating and non-deliberating

jurors because the risks to the jury system presented by post-

verdict investigation into juror misconduct are the same,

regardless of whether the jurors actually participated in

deliberations. Calling back these jurors after discharge is no

less an extraordinary procedure because they did not participate

in deliberations. See DiFrisco, supra, 174 N.J. at 241-42.

Finally, in order to provide guidance in such situations in

the future, we comment briefly on the procedure employed here.

In our view, defense counsel's telephone conversation with the

alternate juror, albeit unsolicited, ran afoul of Rule 1:16-1.

As we explained in State v. Young, 181 N.J. Super. 463, 471

(App. Div. 1981), certif. denied, 91 N.J. 222 (1982), a lawyer

"should promptly advise any juror who approaches him that [the

lawyer] may not discuss the matter and that [the lawyer] must

promptly report any such communication to the trial judge."

Further, we wrote that the lawyer "should encourage the juror to

go directly to the judge to make any complaint or advise the

judge what may have transpired if there appears to be any

questions in the juror's mind." Ibid.

20 A-3491-15T2
 We believe that should have occurred here. Although we

have no reason to believe that defense counsel acted other than

guilessly, instead of receiving the juror's allegations, defense

counsel should have advised the alternate he was prohibited from

speaking with her. He should have urged her to contact the

court and told her that he would do the same. Upon receipt of

that information, either from the juror, defense counsel, or

both, the trial court should have promptly arranged for a

conference with counsel to receive the alternate's complaint on

the record. See Davis v. Husain, supra, 220 N.J. at 288. In

that way, the trial judge could have assessed the alternate

juror's credibility, instead of receiving the complaint through

the filter of a lawyer's hearsay certification, and determined

"whether a Rule 1:16-1 formal inquiry [was] warranted" under

existing case law.7 Ibid.

Instead, the trial judge retired without taking the

alternate's complaint, and a year has passed since entry of the

verdict with no conviction entered and defendant remaining

unsentenced. Complaints of juror misconduct must be addressed

fully and expeditiously to avoid such delays in the future.

7
Our comments should not be read to imply any criticism of
defense counsel. The record regarding counsel's conversation
with the juror is not extensive, and we accept counsel may well
have taken some of these steps, notwithstanding they were not
included in his certification to the court.

21 A-3491-15T2
Because we have accepted counsel's representations of the

alternate's allegations as true and found them insufficient, as

a matter of law, to warrant the extraordinary procedure of

calling back the jury for questioning, we reverse the order

under review and remand for sentencing and the entry of a

judgment of conviction. We do not retain jurisdiction.

Reversed and remanded.

22 A-3491-15T2