STATE OF NEW JERSEY VS. J.T. (09-06-1113, BERGEN COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4041-11T4

STATE OF NEW JERSEY,
APPROVED FOR PUBLICATION
Plaintiff-Respondent, June 13, 2018

v. APPELLATE DIVISION

J.T.,1

Defendant-Appellant.
__________________________

Argued January 19, 2017 – Decided June 13, 2018

Before Judges Fuentes, Simonelli and Gooden
Brown.

On appeal from Superior Court of New Jersey,
Law Division, Bergen County, Indictment No.
09-06-1113.

Brian J. Neary argued the cause for appellant
(Law Offices of Brian J. Neary, attorneys;
Brian J. Neary, of counsel and on the briefs;
Jane M. Personette, on the briefs).

Ian C. Kennedy, Assistant Prosecutor, argued
the cause for respondent (Gurbir S. Grewal,
Bergen County Prosecutor, attorney; Deepa S.Y.
Jacobs, Assistant Prosecutor, of counsel and
on the brief).

The opinion of the court was delivered by

FUENTES, P.J.A.D.

1
We use initials or pseudonyms to refer to defendant and the
victims of these crimes pursuant to Rule 1:38-3(c)(9) and N.J.S.A.
2A:82-46(b).
 Defendant J.T. was indicted by a Bergen County Grand Jury and

charged with the murder of her husband, M.T., N.J.S.A. 2C:11-

3(a)(1)-(2) (count one); first degree attempted murder of her

minor daughter, K.T. (Karen), N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-

3(a)(1)-(2) (count two); second degree endangering the welfare of

Karen, N.J.S.A. 2C:24-4 (count three); second degree endangering

the welfare of her minor son, A.T. (Angel), N.J.S.A. 2C:24-4 (count

four); and third degree terroristic threats against Karen and

Angel, N.J.S.A. 2C:12-3(b) (count five). These charges arise from

events that occurred on March 29, 2009. The indictment also

charged defendant with two crimes that allegedly occurred on an

unspecified date between November 12, 2008 and March 1, 2009:

first degree attempted murder of Karen, N.J.S.A. 2C:5-1 and

N.J.S.A. 2C:11-3 (count six); and second degree endangering the

welfare of Karen, N.J.S.A. 2C:24-4 (count seven).

On December 28, 2011, the jury acquitted defendant of murder,

but found her guilty of the lesser included offense of aggravated

manslaughter, N.J.S.A. 2C:11-4(a). The jury also found defendant

guilty of all of the remaining counts in the indictment. On

February 29, 2012, the trial judge sentenced defendant to a term

of thirty years, with an eighty-five percent period of parole

ineligibility and five years of parole supervision, as mandated

by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2; a term of

2 A-4041-11T4
ten years on count two, attempted murder of Karen, subject to

NERA; and five-year terms on counts three and four, endangering

the welfare of Karen and Angel. The judge ordered all of the

sentences imposed on these offenses to run consecutive, resulting

in an aggregate term of fifty years, subject to the parole

restrictions of NERA.

On the remaining counts, the judge imposed concurrent terms

of imprisonment as follows: a five-year term on the conviction of

third degree terroristic threats; a ten-year term on the conviction

of first degree attempted murder of Karen prior to March 29, 2009;

and a five-year term on the conviction for second degree

endangering the welfare of Karen prior to March 29, 2009.

The central issue in this appeal does not concern whether

defendant actually engaged in the conduct that led to this criminal

prosecution. Defendant admitted she suffocated her husband and

then attempted to suffocate her children. The question before the

jury was whether defendant was legally insane at the time she

engaged in this conduct. The jury found defendant was legally

sane and therefore criminally culpable.

In this appeal, defendant raises the following arguments:

Point I

MULTIPLE IRREGULARITIES INVOLVING THE JURY REQUIRE
THAT DEFENDANT'S CONVICTION BE REVERSED AND THE
MATTER REMANDED FOR A NEW TRIAL.

3 A-4041-11T4
a. The method of jury selection was neither
random nor conducted in a manner consistent
with [N.J.S.A.] 2B:23-2.

b. [Defendant's] due process rights were violated
when the [c]ourt addressed the jury pool in
her absence.

c. The misconduct of two jurors, and the
[c]ourt's thoroughly inadequate ex parte voir
dire of them, prejudiced [d]efendant,
resulting in a denial of due process and
require reversal.

d. The [c]ourt below erred in failing to declare
a [m]istrial.

Point II

VARIOUS ERRORS REGARDING THE TESTIMONY OF DR.
STEVEN SIMRING REQUIRE REVERSAL.

a. Dr. Simring impermissibly opined on the
ultimate issue of guilt, thus requiring that
[d]efendant's conviction be reversed. ([N]ot
raised below).

b. The violation of the sequestration order by
the State's expert requires reversal of
[d]efendant's conviction.

Point III

VARIOUS ERRORS REGARDING THE TESTIMONY OF STATE
WITNESS, [DEFENDANT], PREJUDICED DEFENDANT, THUS
REQUIRING HER CONVICTION TO BE VACATED AND THE
MATTER REMANDED FOR A NEW TRIAL.

a. Summary of [defendant's] trial testimony.

b. Multiple errors regarding the video and
transcript of [defendant's] statement of March
29, 2009 require [d]efendant's conviction to

4 A-4041-11T4
 be vacated and the matter remanded for a new
trial.

c. The procedure employed by the [c]ourt below
violated [defendant's] Sixth Amendment right
to confrontation.

d. Prosecutorial misconduct requires that
[defendant's] conviction be vacated and a new
trial [o]rdered.

Point IV

CUMULATIVE TRIAL ERRORS IN THE CONTEXT OF THE
PROCEEDINGS BELOW DEPRIVED DEFENDANT OF A FAIR
TRIAL AND WARRANT REVERSAL.

Point V

THE SENTENCE IMPOSED BY THE COURT BELOW IS
EXCESSIVE.

a. The [c]ourt below failed to credit [defendant]
with all applicable mitigating factors.

b. Concurrent sentences should have been imposed.

c. The [c]ourt below erred in failing to sentence
[d]efendant as if convicted of offenses one
degree lower.

In light of the record developed at trial, we reverse

defendant's conviction and remand this matter for a new trial.

The record shows the prosecutor asked the expert witness to define

"legal insanity." This question required the State's expert to

improperly opine on defendant's state of mind, stating that

defendant had "the specific intent" to kill her husband. This

opinion testimony usurped the jury's exclusive role to decide this

5 A-4041-11T4
critical factual issue, rendering any verdict tainted by it

unsustainable. State v. Cain, 224 N.J. 410, 424 (2016). Although

this issue is before us as a matter of plain error under Rule

2:10-2, we are satisfied that this testimonial evidence is "of

such a nature as to have been clearly capable of producing an

unjust result." R. 2:10-2.

Although not outcome determinative, this opinion also

includes a detailed description and analysis of the trial judge's

ex parte interactions with a pool of prospective jurors. We have

taken the time to do this because there are no reported decisions

by any court in this State addressing this particular issue.

I

The Incident

Defendant worked as a computer programmer at the New Jersey

Institute of Technology (NJIT); her husband M.T. was primarily

responsible for the rearing of their children as a stay-at-home

father. The couple's two children, Karen and Angel, were fifteen

and ten years old respectively at the time of their father's death.

In early November 2008, M.T. suffered a stroke that caused

severe physical and cognitive impairments and left him unable to

care for himself. Witnesses familiar with the family uniformly

testified that before M.T.'s stroke, the couple appeared to have

a good relationship, and the family was close and enjoyed spending

6 A-4041-11T4
time together. The children's testimony corroborated these

impressions of familial harmony. Karen described her father as

humble, "very kind and modest," and defendant as caring, strong

and "very hardworking." Both children described defendant as a

"good mom" who rarely yelled and never resorted to corporal

punishment.

On November 21, 2008, M.T. was discharged from the hospital

and transferred to the Kessler Rehabilitation Center (Kessler),

where he remained until January 6, 2009, when he was thereafter

transferred to Maple Glen Care Center (Maple Glen). Soon after,

defendant's insurance company issued a "cut letter," advising that

it would not cover M.T.'s stay at Maple Glen beyond February 11,

2009.2

By all accounts, defendant soon became overwhelmed by the

responsibilities of being her husband's sole caretaker, the

family's sole wage earner, and the de facto single-parent of two

children. She was especially distressed after she learned that

M.T. was not eligible to receive social security benefits. This

required her to "spend down" the family's assets by $81,000 before

2
At trial, the admissions director at Maple Glen explained that
an insurance company issues a "cut letter" when it determines that
a patient has maximized the benefits of his or her stay at a
rehabilitation center and is unlikely to progress any further.

7 A-4041-11T4
M.T. could receive Medicaid.3 Witnesses who knew defendant

testified that she worried incessantly about her husband's medical

expenses and feared that they would consume all of the family's

resources, leaving nothing left to cover the cost of the children's

college education.

Defendant's work supervisor, David Ullman, referred her to

the Employee Assistance Program (EAP) for counseling because he

believed she was "at the end of [her] rope." Ullman testified

that defendant would talk to him about dying and seemed like she

was "giving up." Karen and Angel testified that their mother

changed from being a "very strong" person to being "really

depressed, and not really herself." Karen testified that she saw

her mother's mental state deteriorate over time; she acted "mad"

and "crazy."

Karen provided the following description of her observations

of her mother's melancholic disconnection:

There was a time when -- it's like later in
the time period before the incident, she --
she was talking -- not saying the word, but
she was talking about being suicidal. There
was a time when she just . . . wanted to die.
She wished that she was dead. She wished --
she just wished that everything would be over,
because this felt like such a huge boulder on
her shoulders. It was a huge burden.

3
This "spend down" or partial depletion of the family's assets in
order to qualify for Medicaid assistance was based on a valuation
of the family's assets as being approximately $190,000.

8 A-4041-11T4
 . . . .

Q. [D]o you remember exactly what she said?

A. There was one [time] when she said that she
had threatened - - she almost was in the
parking lot, and she wanted to jump off,
because it was like a certain floor, and it
was high up from the ground.

Q. And she told [you] that?

A. Yes.

Angel corroborated his older sister's description of

defendant's lugubrious mood and frustration over his father's

condition, and how her emotional state deteriorated over time.

However, in response to defense counsel's questions on cross-

examination, Angel made clear defendant never engaged in physical

violence:

Q. [W]ould you say that your mom was getting
more and more stressed?

A. Yes.

. . . .

Q. Now, you said to the Prosecutor that she
talked about that she was mad. She . . .
never hit you; is that right?

A. No.

Q. Okay. Never hit [Karen]; right?
A. Never.

Q. Never hit your dad either; right?

A. No.

9 A-4041-11T4
Angel also testified that he and his sister's mutual concerns over

the situation prompted Karen to write a letter to defendant on

February 21, 2009, approximately one month before her father's

death.4 The letter provides, in relevant part, as follows:

I know [these] past couple of months have been
tough on us . . . . BUT, PLEASE! LISTEN TO ME!
You seriously have gone insane! Your emotions
are slowly destroying your decision-making
skills! All I see from you every single
miserable day [is] despair, depression,
insanity [and] psychotic craziness . . . .

[Angel] and I try to make you smile a little
[but] you just fall into a deeper
depression[.]

. . . .

We need you back! We think you are beautiful
[and] loving deep down inside hiding from
[the] madness you show now.

Defendant's behavior also alarmed employees at Maple Glen,

the rehabilitation center that treated M.T. after he was

transferred from Kessler. They testified that defendant obsessed

about M.T.'s care and the cost of his treatment. Kay Giacelone,

an admissions director at Maple Glen whose responsibilities

included patient intake and working with Medicaid, testified that

defendant repeatedly asked variations of the same two questions

on a near-daily basis, namely: (1) whether M.T. could qualify for

4
Although Karen confirmed the letter was in her handwriting, she
testified that she did not recall actually writing it.

10 A-4041-11T4
Medicaid; and (2) whether he would ever regain the ability to walk

independently.

Sheila Hudley, an assistant director at Maple Glen, testified

about a conversation she had with defendant on February 26, 2009:

She had come in to see . . . how he was doing,
have I heard anything . . . . I guess she
wanted to know how his rehab was doing. And
I basically tried to let her know she had to
talk to [the treatment staff]. But, when I
saw him, he was walking with Jackie [(the
Occupational Therapist)]; he was okay . . .
[Defendant asked if] I had seen him that day,
and I said, "Yeah, I'd seen him," . . .
probably earlier that day . . . in the dining[-
]room area . . . with other patients . . . .

. . . .

[S]he asked me if he cannot, . . . she stated
he couldn't live like . . . that. And I said,
"What are you talking about?" As best as I
remember, she said, "He cannot live like that.
Do we do an injection?" So I asked her, "What
are you talking about?" She asked me, "Do we
let people die . . ."

[(Emphasis added).]

When the witness paused, the trial judge decided to call a

recess of the morning session. When the trial resumed in the

afternoon, Hudley testified that immediately after this encounter

with defendant, she sent an email to her Supervisor, to the

center's Administrator, and to the Director of Nursing,

documenting what defendant had told her concerning her husband's

11 A-4041-11T4
wishes to end his life if there was no realistic prospect of

improvement of his physical condition.

Hudley also mentioned in her email that defendant was

"worr[ied] about money for her kids' education and can't keep

spending down . . . ." Although defendant had signed a "DNR" (Do

Not Resuscitate) directive for her husband, she insisted "this was

not good enough and she wanted to get the doctor . . . to give him

an injection so he can die in peace." Hudley characterized

defendant's state of mind as "off her rocker" and "nuts." In the

email, she cautioned her colleagues: "we better all watch this

lady . . . ." In her response to Hudley's email, Giacelone stated

that she would ask the "psych doctor to see and evaluate [defendant

stat.]" The staff at Maple Glen concluded that defendant did not

seem to understand or accept the nature of her husband's brain

injury.

A few weeks after Hudley's encounter with defendant, M.T. had

a home visit to determine if he could return home permanently.

The visit was brief and "stressful" for the entire family. The

level of intensive care M.T. required, particularly around

mealtimes, revealed the futility of any attempt to have him home

without a permanent healthcare aide. On March 28, 2009, M.T. was

sent home a second time; he died the next morning.

12 A-4041-11T4
 In addition to M.T.'s difficulties at mealtimes, Angel and

Karen highlighted two incidents that occurred before M.T.'s death.

Early in the evening, M.T. accidentally ripped the bathroom sink

off the wall when he leaned on it for support. According to

Angel, defendant became "really, really mad." At some point after

ten o'clock that evening, Angel heard defendant yelling at M.T.

for urinating on the bed. Angel testified that he fell asleep

sometime thereafter. He was later awakened by the loud sound of

his father "gasping for air." When asked to describe the volume

of the sound, Angel responded: "Pretty loud." The child testified

that the sound lasted for approximately "five seconds." Although

he shared a bedroom with his sister, Angel stated Karen remained

asleep at this time. The following exchange captured what occurred

next from Angel's perspective:

Q. And was [Karen] in the bed at this point?

A. Yes.

Q. And did you try to wake [Karen] up at all?

A. No.

Q. Did you say anything?

A. No.

Q. But you were scared?

A. Yes.

13 A-4041-11T4
 Q. Okay. What's the next thing you remember
after that?

A. I saw my mom come into the room, maybe like
a minute after this, after the gasping, and
she came in with a plastic bag. And then, she
was about to put the bag on [Karen's] head,
and [Karen] knocked it out of the way.

Q. Okay.

A. And that's when they started arguing.

. . . .

Q. Did [defendant] say anything when she came
into the room?5

A. No.

Q. How did that make you feel?

A. More scared.

Q. What did you think was going to happen?

A. That she was going to suffocate me and
[Karen].

. . . .

Q. And if you could, show us how close you saw
that bag come to your sister's head?

A. Maybe a foot.

. . . .

Q. And what did [Karen] do?

5
Although the bedroom light was off, Angel testified he could see
what was taking place because the room's window-blinds were not
"completely closed," and there was light that came from the
bathroom's window.

14 A-4041-11T4
 A. She like grabbed the bag and pushed it away.

Q. And what happened after that?

A. Then my sister and mom got into an argument.

Q. What did you hear them saying?

A. My sister was yelling, oh, why are you doing
this, mom? Why did you do this? What just
happened? And then my mom was like yelling
back, oh, we can't do anything else, like I
killed dad, and stuff like that.

Karen's testimony corroborated her brother's account of

defendant's conduct. Karen testified that she fell asleep after

her father accidently ripped the bathroom sink off the wall, "then

the water started squirting everywhere." She testified:

A. I had a nightmare . . . about my dad
screaming for help. My mom had a knife in her
hand. And I didn't see like a stab, but I see
a knife going down, and I see blood squirting.

And I woke up without opening my eyes
assuming that it was just a nightmare. And I
opened my eyes and I see the bag over -- almost
over me.

Q. What type of bag?

A. A plastic bag.

[At the prosecutor's request, Karen
demonstrated for the jury how close the bag
was from her head at the time she woke up.]

. . . .

Q. Who had the plastic bag by your head like
this?

15 A-4041-11T4
 A. My mom.

At this point, Karen testified she did not remember what her

mother did next. In the presence of the jury, the prosecutor

asked Karen if she recalled viewing a video recording of a

statement she gave to a law enforcement investigator on March 29,

2009, more than two years before the start of the trial. When

Karen responded "yes," the prosecutor asked her if viewing the

video statement refreshed her memory "as to what [she] said about

what happened after [her] mom had the plastic bag by [her] head?"

Karen answered:

A. I don't remember what happened from bedroom
to kitchen. But I'm in the kitchen and I'm
struggling with my mother. And I don't know
where my brother is. He--he just ran outside.
But at that time I didn't know what to do,
because I really couldn't think.

Q. What was your mom--what do you remember
you and your mom doing in the kitchen?

A. We were struggling, and I kept telling
her, mom, mom, we can still live. You
shouldn't do this to us.

Q. Why did you say that?

A. I said it because I thought she was going
to kill us.

Q. Why did you think she was going to kill
you?

A. I felt like I didn't see a mother anymore.
I saw a monster through her eyes. And I was
just trying to talk her out of it.

16 A-4041-11T4
 Q. Talk her out of what?

A. Talk her out of this depression and [her]
suicidal thoughts . . . .

Q. And were you also afraid for yourself at
that point?

A. Yes.

Karen testified that when she next saw her father that night, "he

was white." She immediately thought that her mother had killed

her father.

While this horrific scene between defendant and her daughter

unfolded, Angel fled the home and attempted to get help from his

maternal uncle and grandparents. After several phone calls, Angel

finally reached defendant's younger brother, W.C. (Wayne). Wayne

testified that when he checked his voice mail at approximately

8:30 a.m., he noticed he had several messages from Angel. The

first message was left at around 8:08 a.m., and stated: "Uncle

[Wayne] . . . this is an emergency; I need you to come over right

away." In the second voice message Angel "sounded more urgent;"

the child stated: "I need you; I really need you to come over

right away."

When Wayne called back, Angel told his maternal uncle that

defendant was trying to kill him, herself, and Karen. Wayne

testified that he told Angel to give the phone to defendant. Wayne

17 A-4041-11T4
said his sister's voice sounded "frantic." She told him that she

had killed M.T., that "she want[ed] everything to end" and take

the children with her. He told her not to do "anything . . .

stupid, anything rash . . . [b]ecause at that time, I thought

. . . she was thinking irrational[ly] . . . ." Although Wayne

thought defendant was acting hysterically, he did not believe that

she had actually killed her husband.

At approximately 8:50 a.m., Angel called 911 and told the

dispatcher that his mother was trying to kill him. Elmwood Park

Police Officers Marc D'Amore and Nicholas Petronzi responded to

the call and arrived at the residence at approximately 9:00 a.m.

D'Amore testified that when they arrived, the front door to the

home was open. When he stepped into the residence, he saw

defendant "sobbing quietly with her head in her hands." D'Amore

found M.T. on the bed; the deceased was already showing signs of

rigor mortis. Both D'Amore and Petronzi testified that defendant

was visibly upset and spoke rapidly in a rambling manner,

interjecting statements about having "too many hospital bills and

had no money." D'Amore testified that defendant told him: "[M.T.]

urinates and I have to clean it up. He broke everything in the

house last night and Kessler kicked him out because we have no

money." She also stated that she killed M.T.

18 A-4041-11T4
 The officers arrested defendant in her residence. Petronzi

testified he escorted defendant handcuffed to his patrol car,

where he read to her the standard Miranda6 rights from a card he

carried in his pocket. However, when he asked her if she

understood those rights, defendant was unresponsive and merely

stared straight ahead. The drive to the police station took

approximately six to eight minutes. During this time, defendant

continued "rambling" to the officers "that she had too many bills,

too many hospital bills, that she [had] no money, and that she had

no money for her kids['] college." She also told the officers:

"Put a bullet in my head. I want to die."

Defendant continued to behave in this manner after she arrived

at the police station. Elmwood Park Detective Robert Centowski

testified that when he approached defendant to gather background

information, she was rocking back and forth on the metal bench to

which she was handcuffed. Although she was not crying, he

described her demeanor as "visibly upset." Centowski was unable

to complete the standard background interview because defendant

repeatedly answered his questions with nonresponsive statements

of an incriminating nature. For example, when Centowski asked

defendant for her name, she "smirked" and said, "[w]ell, not

6
Miranda v. Arizona, 384 U.S. 436 (1966).

19 A-4041-11T4
really--not [T] anymore. That was my husband's last name." When

he asked her for her date of birth, she responded: "What do you

want me to do? He can't even go to the bathroom. He makes a

mess. He ruined our lives. All of our savings go to bills. My

children have nothing now."

Bergen County Prosecutor's Office (BCPO) Detective Gregory

Kohles was assigned to question defendant about what had occurred

at her home. He conducted the interrogation at the Elmwood Park

Police Station. When asked by the prosecutor to describe

defendant's demeanor when he first saw her, Kohles responded:

"Obviously, a . . . terrible thing had taken place. She was -- I

would say distraught is the best way to describe her. She was

distraught and obviously very upset over everything that was going

on." From 11:37 a.m. to 1:03 p.m., Kohles asked defendant whether

she understood her Miranda rights five to six times. During this

approximately ninety-minute time period, Kohles said defendant was

unfocused and preoccupied with explaining what happened.

According to Kohles, defendant repeatedly told him that she

wanted to die. As a result, Kohles determined that "no matter

what," once the interrogation was concluded, defendant should be

referred to Bergen Regional Medical Center (Bergen Regional) for

a psychiatric evaluation. In fact, defendant never signed the

standard Miranda waiver form. Kohles testified that "due to her

20 A-4041-11T4
emotional state . . . it took until 1:03 [p.m.] when she finally

verbally understood and said that okay, I'm willing to answer some

of your questions and explain what's going on."7 (Emphasis added).

Defendant told Kohles that she became frustrated with M.T.

when he urinated on the bed and laid back down on the soiled sheets

after she had just changed his clothes. When she asked him to get

up, he purportedly refused to move because he was tired and wanted

to sleep. In the course of the interrogation, defendant revealed

the thoughts that ran through her mind as she contemplated the

prospect of spending an indeterminate amount of time caring for

M.T.'s every need. She found particularly distressing envisioning

the details of having to perform the tasks related to M.T.'s

personal grooming needs. She derived no solace from knowing that

a home-health aide would likely be available to assist M.T. with

performing many, if not all, of these aspects of his personal

care. Her non sequitur replies to her interrogators' questions

revealed defendant saw herself trapped in a loop of despair caused

by two seemingly unsolvable problems: (1) the drain on the family's

financial resources caused by M.T.'s never ending personal needs;

7
The trial court found defendant's statements were admissible
because she voluntarily, knowingly, and intelligently waived her
rights under Miranda. This ruling is not challenged on appeal.

21 A-4041-11T4
and (2) the disgust she felt cleaning up after M.T.'s

uncontrollable biological functions.

As this psychological/emotional cyclone ravaged the stability

of this family, defendant responded by telling M.T. to "go ahead,

you can sleep forever." She then "let [M.T.] go" to a "better

place." She told the detectives that she had to "release him" and

that her actions had nothing to do with the kids. At one point,

the interrogating officers asked defendant how she suffocated her

husband, asking her if she "choke[d] him?" She responded:

A. I actually tr[ied] to put the plastic on
him too.

Q. Plastic?

A. I put the plastic on my hand . . . .

Q. Plastic? What? Like saran wrap or like a
plastic wrap?

A. The shopping, the shopping bag.

. . . .

Q. [S]o that's over his face and then your
hand over it?

A. Only his nose.

Q. His nose and mouth? Okay. Okay. Does he
realize what's going on or anything like that
or no?

A. In a way he, he was, he probably wondering
what, what happened.

Q. Okay.

22 A-4041-11T4
 A. And I'm telling him, you won't remember.

Q. Right.

A. Ten years from now you won't remember
anything.

Q. Okay.

A. He lives in a better place.

Defendant also told the interrogating officers: "After 7:00

[a.m.] I was trying to kill myself . . . I had the plastic ready."

After she allegedly placed the bag over her, defendant said she

"started feeling something" and decided to see her children one

last time. She explained:

[Karen] asked me what I'm doing. I said, oh,
I want to, I want to bring you with me. She
saw the plastic [bag], she immediately
grab[bed] it . . . .

. . . .

I told her . . . I want to bring you with
. . . me and your brother. She immediately
grabbed the thing off my hand and she started
screaming, mom, you cannot do that, we need
you and I say, I'm really sorry, but I already
let your father die. I let your father go.
I don't [want to] leave you and your brother
on earth alone. I want to bring you with me.

Shortly after this exchange, defendant's answers became a

series of nonresponsive statements that wandered into unrelated

topics, including: (a) problems she was having with the house's

heating system; (b) her father's disapproval of M.T.; and (c) her

23 A-4041-11T4
children and her general frustration with medical industry

practices. She also mentioned a conversation she allegedly had

with M.T. before his stroke concerning a news story about a

comatose woman. Defendant claimed that she and her husband agreed

then that each would let the other spouse die under those

circumstances.

At the conclusion of the interrogation, the police officers

transported defendant to Bergen Regional for a suicide assessment.

Dr. Steven Simring, the State's expert witness in the field of

forensic psychiatry, testified that the attending doctor at Bergen

Regional gave defendant a global assessment of functioning score

(GAF)8 of ten and made "an admitting [tentative] diagnosis" of

defendant of "Axis I . . . major depressive disorder single episode

severe with psychotic features." Dr. Simring explained that after

a week of observations, defendant's diagnosis was revised to "major

depressive disorder occurrence severe without psychotic features."

Defendant was discharged from Bergen Regional and considered "safe

to return to jail."

8
The GAF score is on an objective scale of zero to one hundred,
with ten representing a homicidal or suicidal individual and one
hundred representing someone who is functioning normally.

24 A-4041-11T4
 II

The Trial

A

On Monday morning, November 28, 2011, the vicinage's Jury

Manager's Office sent a venire of prospective jurors to the judge

assigned to try this case. For reasons not disclosed in this

record, the judge allowed the jurors to enter the courtroom and

addressed them concerning the nature of the case, without the

attorneys or defendant present. (Emphasis added).

THE COURT: All right. Everybody has a seat
now. Good morning, everyone. [Y]ou've been
assigned to me in order to select a jury for
the case [of] [State v. J.T.] on Indictment
No. 1113-09.

We'll be starting this trial tomorrow and
we're going to work every day except for
Mondays and Fridays. Monday is a calendar
call day here at the Courthouse for the
criminal cases. This is a criminal case.
And on Fridays we do sentences. So, that's
why the trials are reserved for Tuesday,
Wednesday and Thursday.

So, with regards to the duration of the
trial, it would be, obviously, this week
Monday -- I'm sorry -- Tuesday, all day
tomorrow, then Wednesday it would be half-day,
and Thursday it would be half-day. So, at
12:30 you would be dismissed, and then you can
go back to work, or do whatever you'd like to
do.

25 A-4041-11T4
 At this point, we pause to emphasize that the record does not

reflect that the judge discussed any trial scheduling details with

the attorneys. In fact, the judge conducted a lengthy explanation

with this group of prospective jurors that covered not only that

current week, but what the judge anticipated would occur the

following week. The judge continued:

[W]e don't think that the case is going
to go that long, but just in case, we always
have a reserve of additional days, but the
case is a rather short case. It's a criminal
case that should only take three to four days9
. . . .

Now, I know that they're selecting jurors
in the Civil Division. They're working on a
medical malpractice case, and there's another
Judge who is also working in the Civil
Division who is selecting [jurors] today
. . . .

Those cases are all scheduled to last
anywhere between three to four to five weeks.
So as you [can] tell, this is a very short
case. So, it's better that you stay here
. . . [because] you could satisfy your jury
duty [with] a short case . . . .

[(Emphasis added).]

The judge also acknowledged the upcoming holiday season, but

assured the jury pool:

9
Including the jury selection process, the trial actually lasted
thirty calendar days.

26 A-4041-11T4
 [I]'m sure to get you out of here before the
Christmas holidays. I'm telling you, it will
not go that far.

So, if you have a holiday, if you have a
vacation plan for Christmas, that's fine.
It's not going to interfere in any way with
your vacation schedule. This is just a short
trial and . . . we will surely be done before
the 19th of December.

The record does not contain any information that explains how

the judge arrived at the estimates of the expected length of the

trial that she provided to the prospective jurors. The only basis

we have in this record from which to infer how this ex parte

exchange occurred comes from the judge's following comments:

[The Jury Manager's Office] had originally
scheduled you to come here at 1:30 [p.m.], but
I didn't want to have . . . your whole day --
wasted, you know? I said if I could get this
done in the morning, it's better. This way
they have the rest of the day to do whatever
they like.

Finally, we are compelled to note that the judge concluded

her address to the jurors without including cautionary

instructions: (1) not to discuss the case among themselves or with

anyone else; and (2) not to conduct any kind of research on the

case, especially on the internet. Because the judge identified

defendant by name and stated the case's indictment number, the

failure to provide this admonition to the jurors proved to be

particularly problematic. Trial judges must be mindful that in

27 A-4041-11T4
this Internet age, the availability of pertinent information about

any criminal case, especially one involving these tragic details,

is but a click away.

The State does not address this issue in its eighty-four-page

appellate brief. Defendant's appellate counsel, who was the

attorney who represented her at trial, asserts that the judge did

not consult with him before she addressed the jury pool on November

28, 2011. Defense counsel also points out that "the trial

continued well past the time incorrectly estimated by the [c]ourt

. . . ."

Defendant, her counsel, and the prosecutor were present when

the court reconvened on Tuesday morning, November 29, 2011. The

transcript of these proceedings does not indicate the time the

court session began. Based on the nature of the issues discussed

in open court, we infer the prospective jurors were not in the

courtroom at the time the trial judge and counsel discussed a

plethora of issues, some involving mundane matters, and others

concerning significant legal questions, including the

admissibility of defendant's inculpatory statement made during her

custodial interrogation. As to the duration of the trial, the

judge asked the prosecutor: "How long do you anticipate the entire

trial to be . . . including the defense case[?]" The prosecutor

28 A-4041-11T4
responded: "I believe testimony would conclude . . . some day [in]

the week of December 19th, [2011]."

The attorneys also spent a significant amount of time

discussing the substance and phraseology of the voir dire questions

and the methods the judge would use to present these questions to

the prospective jurors. In the course of these discussions,

defense counsel confirmed that the court clerk planned on

"prequalifying" the jurors by "individually voir diring them here,

as opposed to sitting fourteen in [the jury box]." This prompted

the following exchange:

DEFENSE COUNSEL: [H]ave these jurors been
spoken to about this case before? About this
particular case?

THE COURT: No. They know nothing about the
case other than they came here yesterday, and
they were told to return today. And they're
here today, right?

COURT CLERK: Yes.

THE COURT: You took attendance?

COURT CLERK: Uh-huh.

THE COURT: So, they know nothing about the
facts of the case. They don't know anything
other than you're here. You've been assigned
to the Criminal Division for selection of a
jury. Jury selection starts tomorrow,
November 29th, [2011]. Be here at 8:30
[a.m.].

DEFENSE COUNSEL: Okay.

29 A-4041-11T4
 THE COURT: So, they're going to learn about
this case for the first time today.

DEFENSE COUNSEL: So, the [c]ourt is aware.
Actually, there . . . had been some publicity
concerning this case at the time of . . . its
event. It showed up as front page news . . .
on The Bergen Record . . . a number of times.

Thus, despite the length and breadth of these discussions and the

specificity of defense counsel's questions, the judge failed to

disclose to the attorneys that in the course of the previous day's

ex parte interactions, the judge told the prospective jurors

defendant's name and the case's indictment number.

The first indication of the prospective jurors' presence in

the courtroom on Tuesday, November 29, 2011, is found on page

fifty of the 138-page transcript. After reading the charges

against defendant contained in the indictment, the judge addressed

the anticipated length of the trial: "Now, this case is a short

case compared to other cases that are being heard and jurors are

being selected for those trials right now. We have civil cases

and we have criminal cases right now where other judges are

selecting." With respect to scheduling, the judge stated:

You, obviously, have to be here today. You
would also have to be here tomorrow and
Thursday.

. . . .

Now, with regards to the following week,
it's December 13th, 14th and 15th . . . [a]nd

30 A-4041-11T4
 then the following week would be December 20,
21st, 22nd, and if need be, the 23rd, but I
really do not believe that the case will go
further than that.

With regards to jury deliberations, if
you choose, you can come back the week after
Christmas to continue . . . but I do not
believe that this case will go past the 22nd.

During the jury selection process on November 29, 2011, a

prospective juror disclosed that he had researched the case on the

internet the previous evening (November 28, 2011) and had discussed

the case with his wife. The trial judge, having apparently

forgotten that she had disclosed the case name and indictment

number to the jurors the day before, insisted she did not know how

this particular juror had obtained the information:

THE COURT: I told [the jurors] to come the
next day.

DEFENSE COUNSEL: [Y]ou brought them in the
room. You told them the name of the case.

THE COURT: No. I don't agree with that. Your
objection is noted for the record [but] I
really doubt [it].

The record shows defense counsel made numerous attempts to

articulate his objections and preserve his argument on the record.

The judge continuously interrupted counsel, ultimately stating:

"Everything doesn't have to be done right now." Counsel asked the

judge to "consider taking a short break so I can articulate the

argument and I think, very honestly, that we may have to go to the

31 A-4041-11T4
tape from yesterday to find out what, in fact, was said." The

judge remained inflexible on the subject:

THE COURT: I'm not doing it now.

DEFENSE COUNSEL: -- but, Judge, we [are] going
to spend all our --

THE COURT: [Counsel], we're not doing it now.

DEFENSE COUNSEL: Judge, you have these --

THE COURT: Take a deep breath. We're not doing
it now, okay?

DEFENSE COUNSEL: -- I – oh, Judge, I take a
lot of deep breaths, but it may make it germane
because, you know, we may . . . spend the
whole afternoon picking people that we may
have to declare a mistrial.

THE COURT: Well, I don't agree with your -- I
don't agree with a mistrial.

DEFENSE COUNSEL: But, mistrial -- you haven't
-- but you didn't remember that you had said
something about it yesterday because . . .
obviously this [juror] said there's --

THE COURT: - - I had absolutely no interaction
with them other than to tell them to come back
the next day . . . I did tell them it was a
criminal case.

DEFENSE COUNSEL: -- [B]ut you must have said
the name of the [defendant] because how else
would he know?

THE COURT: All right. I'll . . . do it this
way. Even if I said the name, I still do not
find that it's a mistrial because there was
no selection . . . of any kind.

. . . .

32 A-4041-11T4
 DEFENSE COUNSEL: [B]ut the problem was that
the defendant wasn't present at the beginning.

[(Emphasis added).]

When the prospective jurors returned to the courtroom, the

judge gave the following instructions with respect to conducting

independent research concerning the case:

And I know a lot of you have, you know,
strawberries, raspberries, and Blackberrys,
and you know, they're almost like a mini-
computer that you carry around with you, but
it is absolutely imperative that you do
absolutely no research about this particular
case with regards to your jury service, and
that's before, during and after the case. And
that's, obviously, to protect the integrity
of the case with regards to the evidence.

On December 1, 2011, defense counsel obtained an audio-video

recording of the November 28, 2011 proceedings and renewed his

objections to the judge's ex parte remarks to the jury. Counsel

began his address to the judge by quoting Rule 3:16(b), which

provides, in relevant part: "The defendant shall be present at

every stage of the trial, including the impaneling of the jury

. . . ." He then placed on the record how the jury selection

process had proceeded up to that point. Counsel then addressed

the trial judge directly as follows:

[W]hen the [c]ourt represented on the tape
that the case would be over by December 15th,
you never asked me that question -- and I won't
put [the prosecutor] in this spot, but I doubt

33 A-4041-11T4
 you asked her that question either. [It was]
not only unrealistic, [it was] wrong. It's
wrong. And a whole discussion about . . .
[that] medical malpractice case that was going
to go 3, 4, 5, 6 weeks . . . . I can remember
it pretty well, where you said, "This way you
can get your jury service out of the way."

What message does that send to jurors?
That this is a . . . December inconvenience?
That they are to get their duty out of the
way? That's your words, Judge, "out of the
way."

In the meantime, she's not here. [J.T.]
is nowhere to be seen. You interact[ed] with
these jurors and you talk[ed] about a judicial
process with them without [defendant] present
at the time.

Defense counsel urged the court to declare a mistrial and

moved to admit the audio record of the November 28, 2011 ex parte

proceedings into evidence. The judge did not formally rule on

defendant's motion for a mistrial. When counsel sought to clarify

what he believed was a clerical error in the manner the audio tape

had been time-stamped, the judge reminded him that she had allowed

him only "five minutes" to place his argument on the record. The

judge then asked for the jury to be brought into the courtroom.

B

The trial judge's comments to the jury again became an issue

on December 14, 2011, the sixth day of witness testimony. On this

date, Juror Number 2 submitted a letter dated December 12, 2011,

from her employer, the District Manager of a nationwide pharmacy

34 A-4041-11T4
chain, requesting that she be excused from the trial the next day,

December 15, 2011. According to the letter, the juror was the

manager of a local outlet, and her "compensation [was] contingent

on the profitability of the store." In the words of the

prosecutor, "[i]t sounds like, if she doesn't work through the

holiday season, she's not going to get paid as much as she normally

would."

The prosecutor proposed that the judge question Juror Number

2 outside the presence of her fellow jurors "to see if she urged

her boss to write the letter" and determine whether she can

continue to serve as a juror in this case if her request was

denied. When the judge asked defense counsel for his thoughts

on the matter, counsel stated he viewed this juror's request as

both a byproduct of the trial judge's initial mishandling of the

jury selection process and an indication of how this threshold

error prejudiced defendant's right to a fair trial:

Well, Judge, actually this is a problem that
was created basically two weeks ago . . .
when you told the jury . . . when counsel
wasn't present . . . that this case would be
a short case [and that] this case would only
be to the 15th. [They were] misinformed
[about the probable length of the trial].

So I suspect that she's one of maybe several,
maybe many, who are now thinking the same
. . . thing. Because, when you go back and
look at it . . . we told them the 15th [and]
today's the 14th . . . .

35 A-4041-11T4
 Although he believed the juror's request was legitimate

because December "is a critical time" for retailers "[a]nd this

poor lady . . . probably makes her money on an hourly basis or

overtime[,]" defense counsel asserted that "we're now . . .

[s]tuck." Before interviewing the juror, the judge stated: "I

told them from the very beginning that this is not an excuse

. . . to get off of jury service . . . because then we would have

excused everyone . . . ."

Ultimately, the judge rejected the juror's request. In an

attempt to justify her decision to deny the juror’s request, the

judge again mentioned the days available for her to return to work

when the trial was not in session, the availability of other store

employees to cover for her, and the letter the judge planned to

send to the District Manager explaining the situation. The record

shows, however, that Juror Number 2 repeatedly claimed that she

was not aware that the trial could go beyond December 15, 2011.

The judge ended the exchange by asking the juror "not to

discuss this with any of the other jurors." However, the judge

did not ask the juror: (1) whether remaining on the jury beyond

December 15, under these circumstances, constituted a financial

hardship for her; (2) whether remaining on the jury despite her

wishes to leave affected her ability to consider the evidence

36 A-4041-11T4
fairly and objectively; and (3) whether she had discussed anything

about the case with her District Manager or anyone else at her

place of employment.

C

At the conclusion of the charge conference held on December

21, 2011, the judge told the attorneys that, despite her repeated

admonitions to the jurors to not discuss the case among themselves,

it had come to her attention, "from all different areas . . . that

two jurors have been speaking to each other throughout the course

of the trial." Although she did not know whether the two jurors

were discussing matters related to the trial, the judge believed

it was necessary to interview the two jurors separately and outside

the presence of the remaining jurors. Both attorneys agreed this

was the proper way to address this issue.

Defense counsel asked the judge to summarize what she intended

to say to each juror. The judge noted that her main concern was

to determine "what the discussions were about." Counsel responded

that in addition to the substance of the jurors' conversations,

it was also important to determine if their conversations had

distracted them from "paying attention" to what was taking place

during the trial. As framed by defense counsel: "If they are

talking about lunch, . . . they're not paying attention to the

37 A-4041-11T4
witness." The judge agreed to "inquire about that," but added:

"I think we should take it one step at a time . . . ."

The judge addressed the issue the following day, December 22,

2011. Before the two jurors were brought to the courtroom, defense

counsel asked the judge to clarify, for the record, how this issue

came to her attention. After this discussion ended, the

Sheriff's Officer brought Juror Number 11 to the courtroom where

the following exchange ensued:

THE COURT: Good morning. How are you? You're
Juror No. 11. It's come to my attention
yesterday late in the day [after] you had
already left. All the jurors had already
left.

JUROR NUMBER 11: Yes.

THE COURT: You're cognizant of my . . . rulings
with regard to what the rules are about
discussing the case. Have you discussed the
case with any of the other jurors . . . in any
way?

JUROR NUMBER 11: No.

THE COURT: Any of the facts or any of the
testimony?

. . . .

JUROR NUMBER 11: No.

. . . .

THE COURT: [I]s . . . there anything about
what happened yesterday that would affect your
ability to be fair and impartial?

38 A-4041-11T4
 JUROR NUMBER 11: What happened yesterday?

THE COURT: Well, with --

JUROR NUMBER 11: I just needed to leave on --

THE COURT: No. Just it came to my attention
that you were speaking to another juror in the
jury box. So is there anything that you were
discussing --

JUROR NUMBER 11: Oh, no.

THE COURT: -- with regards to the facts of the
case or the testimony?

JUROR NUMBER 11: We were kind of -- it was
amusing what was happening yesterday seemed
like a theater.

THE COURT: Okay. It was amusing . . . the
last part of the testimony?

JUROR NUMBER 11: Yes.

THE COURT: When everybody else --

JUROR NUMBER 11: With Santa and --

THE COURT: When everybody else in the jury box
was also laughing?

JUROR NUMBER 11: Yeah.

After Juror Number 11 left, but before the Sheriff's Officer

brought the next juror into the courtroom, defense counsel noted

that the judge did not point out to Juror Number 11 that "everybody

saw them talking all day long. [Y]our question simply directed

her to the end of the day." Counsel argued that the judge should

have asked Juror Number 11: "[W]hat were you talking about . . .

39 A-4041-11T4
all day?" The judge explained that Juror Number 11 found amusing

"the testimony was about Santa, and we were discussing the fact

that we needed a break." Defense counsel argued the questions

asked by the judge were inconsistent with the opened-ended approach

agreed to by the parties.

The prosecutor disagreed "that the two jurors were talking

to each other throughout the day." The prosecutor claimed that

based on defense counsel's "body position," she was not able to

see the witnesses as they testified. The prosecutor stated, "so

I basically just started looking at the jury for an hour, or two

hours . . . . And frankly, I did not see two jurors talking to

each other continually while there was testimony." This triggered

an active discussion between defense counsel and the judge about

the meaning of the judge's earlier statement that her "staff" had

seen two specific jurors leaning in and talking to each other

while the trial was in progress.

Defense counsel then asked the judge to recall Juror Number

11 so the judge can inquire further about the nature and substance

of her interactions with her fellow juror. The judge brought

Juror Number 11 back to the courtroom and asked her the questions

suggested by defense counsel. The juror consistently denied

talking to Juror Number 10 about anything to do with the trial

"throughout the course of the day." In response to the judge's

40 A-4041-11T4
question, Juror Number 11 reaffirmed her ability to judge the

evidence in the case fairly and impartially.

After overruling defense counsel's objections, the judge

brought Juror Number 10 into the courtroom and engaged in the

following colloquy on the record at sidebar, but outside the

presence of defendant and the attorneys:

THE COURT: I just wanted to let you know that
throughout the course of the trial it came to
my attention through, you know, various
sources that you may have been discussing the
case with some of the other jurors or juror.
Have you been discussing anything? Have you
been talking about anything?

JUROR NUMBER 10: No. Other than people's
shoes that they're wearing in court and stuff
like that.

THE COURT: Okay. What about Juror No. 11,
have you been discussing anything with her
about the case or anything? Just tell me what
the topics are.

Juror Number 10 denied talking to Juror Number 11 about

anything to do with the trial. She noted: "I'm with these people

every day. Obviously we talk to each other." Finally, Juror

Number 10 told the judge that her mind "wanders" after sitting for

three hours straight. She suggested that the court take more

frequent breaks. The judge told her to raise her hand "if you

need a break." The juror reaffirmed her ability to judge the

evidence fairly and impartially. The interview with the juror was

41 A-4041-11T4
recorded and played back to the attorneys and defendant at defense

counsel's request.

Defense counsel objected to the manner the judge conducted

what counsel characterized as a "private conversation" with Juror

Number 10, outside the presence of defendant. Although the judge

attempted to accommodate defense counsel's objections by playing

back the audio recording of the interview, the equipment

malfunctioned. The judge was thus compelled to recall Juror Number

10. The juror again affirmed that the conversations she had with

her fellow jurors involved innocuous topics like Christmas

shopping, her children, and her work. She unequivocally denied

discussing any aspect of the case and again emphasized the need

for more frequent breaks because she had "a very short attention

span." The judge conducted this interview in open court, in the

presence of defendant and the attorneys.

Defense counsel noted that this time, the juror was not asked

any questions about her ability to be able to remain fair and

impartial. Defense counsel characterized this omission as the

"gravamen of what the original complaint was when we started this

process." The prosecutor argued that both jurors answered the

court's questions candidly and forthrightly. There was no evidence

that the jury had been exposed to any extraneous information that

could compromise the deliberative process or that these two

42 A-4041-11T4
particular jurors had done anything improper. After considering

the arguments of counsel, the judge found no basis to remove Jurors

Numbers 10 and 11.

III

Our analysis of the trial judge's initial ex parte

interactions with the pool of prospective jurors is guided by

certain bedrock principles. These fundamental tenets of jury

trial management were succinctly explained by Justice LaVecchia

on behalf of a unanimous Supreme Court in Davis v. Husain, 220

N.J. 270 (2014):

Generally stated, avoiding the aura of
irregularity that arises from ex parte judge-
juror interactions has always been a goal in
and of itself. Canon 3 of the Code of Judicial
Conduct exhorts judges to "perform the duties
of judicial office impartially and
diligently," and specifically states, under
adjudicative responsibilities identified in
Canon 3(A)(6), that "[a] judge should accord
to every person who is legally interested in
a proceeding, or that person's lawyer, full
right to be heard according to law, and,
except as authorized by law, neither initiate
nor consider ex parte or other communications
concerning a pending or impending proceeding."

[Id. at 285 (alteration in original) (emphasis
added).]

The issue in Davis concerned a trial judge's ex parte

interactions with jurors after the jury had rendered its verdict,

conduct that the Court strongly criticized and expressly

43 A-4041-11T4
prohibited under its constitutional supervisory authority over

civil and criminal trials. Id. at 285-86 (first citing N.J. Const.

art. VI, § 2, ¶ 3; and then Pasqua v. Council, 186 N.J. 127, 152

(2006)). See also R. 1:16-1.10

In the spectrum that encompasses all of the probable points

of contact between trial judges and jurors, there is an origination

point and an end point. The ex parte interactions the Supreme

Court found highly inappropriate in Davis involved the end point

of this spectrum; the jury as a body had rendered its verdict.

The ex parte interactions that occurred here were at the

origination point, before the jury selection process had even

begun. In this context, our task is to determine how and to what

extent the judge's ex parte interactions at this embryonic phase

of the proceedings jeopardized defendant's right to a fair trial.

Although no reported decision has addressed the propriety of

ex parte interactions between a trial judge and a pool of

prospective jurors, the ethical principles articulated by the

Court in Davis apply with equal force here. In Davis, the Court

emphasized the need to avoid "an aura of irregularity that arises

10
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."

44 A-4041-11T4
from ex parte judge-juror interactions . . . ." Davis, 220 N.J.

at 285. The Court cited a judge's ethical responsibilities under

Canon 3 of the Code of Judicial Conduct to carry out judicial

functions in a manner that exhibits impartially. Ibid. These

ethical obligations are consistent with the clear mandate of Rule

3:16(b), which expressly gives a defendant the right to be present

"at every stage of the trial, including the impaneling of the

jury[.]"

We thus hold that the injunction imposed by the Court in

Davis against judges engaging in ex parte interactions with jurors

after the trial has concluded applies with equal force to any ex

parte interactions with prospective jurors, even those that occur

before the jury selection process has begun. Stated more

emphatically, there is no place for ex parte communications between

a trial judge and the jurors at any stage of the trial process.

As the Court held in Davis:

During the pendency of the trial, the rules
speak with crystal clarity. Rule 1:2-1
controls judge and jury interactions, and it
provides that "[a]ll trials, hearings of
motions and other applications, pretrial
conferences, arraignments, sentencing
conferences . . . and appeals shall be
conducted in open court unless otherwise
provided by rule or statute."

[Davis, 220 N.J. at 280 (alterations in
original).]

45 A-4041-11T4
 We now turn to determine whether this judicial error had the

capacity of denying defendant her constitutional right to a fair

trial. "[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. Gleaton, 446 N.J. Super.

478, 523 (App. Div. 2016) (quoting State v. Ross, 218 N.J. 130,

145 (2014)). Here, the judge's decision to interact ex parte with

the prospective jurors showed extremely poor judgment on the

judge's part and revealed the judge's failure to appreciate the

significance of the judge's role in a jury trial. However, as

valid as these concerns may be, the key question here is whether

the judge's ex parte interactions warrant the reversal of

defendant's conviction. The answer to this question must be based

on a fact-sensitive analysis.

A judge's improper ex parte interactions with a jury "does

not automatically require" the reversal of a jury's verdict. State

v. Morgan, 217 N.J. 1, 12 (2013) (quoting State v. Brown, 275 N.J.

Super. 329, 332 (App. Div. 1994)). Writing for the Court in

Morgan, Chief Justice Rabner reaffirmed the three-part test for

evaluating a judge's inappropriate communications with a jury:

(1) if the record affirmatively reveals that
the defendant was prejudiced, reversal is
required; (2) if the record does not show
whether the ex parte contact was prejudicial,
prejudice is presumed; and (3) if the record

46 A-4041-11T4
 affirmatively discloses "that the
communication had no tendency to influence the
verdict," the outcome should not be disturbed.

[Ibid. (quoting State v. Auld, 2 N.J. 426, 432
(1949)).]

After carefully reviewing the record and mindful of the

Morgan/Auld three-part test, we conclude there is insufficient

evidence from which to find that the judge's ex parte

communications with the prospective jurors had a tendency to

influence the jury's verdict. We are nevertheless very troubled

by the way the trial judge acted in this case. Because there are

no reported opinions from any court in this State addressing this

issue, and as part of our didactic role as an intermediate

appellate court, we will review the areas where the judge erred

as a means of preventing their recurrence.

As a starting point, we conclude the trial judge had an

affirmative, ethical duty to disclose to the prosecutor and defense

counsel that she had ex parte interactions with the pool of

prospective jurors. This ethical duty to disclose is firmly

grounded in the Court's admonition in Davis to avoid "the aura of

irregularity that arises from ex parte judge-juror interactions"

and the Canon 3 of the Code of Judicial Conduct. Davis, 220 N.J.

at 285. Here, the judge's failure to disclose her interactions

with the prospective jurors cast a shadow of suspicion and secrecy

47 A-4041-11T4
over the jury selection process. We find particularly problematic

the judge's failure to make clear to the attorneys that during

this ex parte exchange, the judge: (1) referred to the case by

defendant's name and indictment number; (2) made repeated

factually unwarranted prognostications about the length of the

trial; (3) used language that conveyed an aura of levity regarding

jury service; and (4) suggested that serving as a juror on this

case would not be as demanding as serving in a medical malpractice

trial.

When viewed through the prism of the tragic, graphic facts

of this case, these comments were particularly inappropriate and

insensitive. The judge's comments estimating the case was likely

to take only "three to four days" could have been construed by a

rational juror as an indication of the judge's insightful

assessment of defendant's guilt. As the Supreme Court has noted:

"Trial and appellate courts acknowledge that juries, witnesses,

and other trial participants accord great weight and deference to

even the most subtle behaviors of the judge." State v. Figueroa,

190 N.J. 219, 238 (2007) (quoting Peter David Blanck, What

Empirical Research Tells Us: Studying Judges' and Juries'

Behavior, 40 Am. U.L. Rev. 775, 777 (1991)).

Furthermore, the judge's initial reluctance to acknowledge

to defense counsel that she engaged in this conduct and made these

48 A-4041-11T4
comments only served to exacerbate this "aura of irregularity."

Even after one of the prospective jurors was excused after

admitting that he had researched defendant's name on the internet

the previous night, the judge continued to claim she had no

recollection of mentioning defendant's name the previous day

during the ex parte interaction with the jurors. The judge did

not concede this error until defense counsel confronted her with

the audio recording of the ex parte exchange. However, even after

these issues were brought to her attention, the judge did not make

any attempt to mitigate the potential prejudice these comments

could have caused.

As the record shows, the judge's ex parte interactions

definitively adversely affected Juror Number 2. Six days after

trial testimony began, the judge received a letter from this

juror's employer, requesting the judge to release Juror Number 2

from serving on this case. In response to the judge's questions,

this juror testified that she specifically relied on the judge's

ex parte prognostication, made on November 28, 2011, that the

"criminal case . . . should only take three to four days[.]" After

questioning the juror directly and discussing the matter with

counsel, the judge denied the juror's request.

As agreed by counsel, the judge told the juror that the court

would write a letter to her District Manager explaining why she

49 A-4041-11T4
could not be released from the jury. This gesture, of course, did

not compensate the juror for the time she was missing from work

during this revenue-intensive time of year. The record also shows

that in response to the judge's question, Juror Number 2 reaffirmed

her ability to review the evidence fairly and impartially and to

follow the judge's instructions on the law. Juror Number 2 was

one of the jurors who deliberated and ultimately found defendant

guilty.

From this record, we do not have a rational basis to conclude

this incident tainted the jury's verdict. Even when considered

from the perspective of their cumulative effect, a new trial would

have been warranted only if these errors "could have a tendency

to influence the jury in arriving at its verdict in a manner

inconsistent with the legal proofs and the court's charge." Panko

v. Flintkote Co., 7 N.J. 55, 61 (1951). Stated differently, "[t]he

test is not whether the irregular matter actually influenced the

result, but whether it had the capacity of doing so." Ibid. We

conclude the errors the judge committed here do not give us

sufficient grounds to set aside the jury's verdict. That said,

it is obvious to us that the financial hardship endured by Juror

Number 2 could have been easily avoided had the judge, after

consulting with counsel, given the prospective jurors a reasonably

accurate estimate of the length of the trial.

50 A-4041-11T4
 Jury service is one of our most important and cherished

constitutional rights. "Indeed, with the exception of voting, for

most citizens the honor and privilege of jury duty is their most

significant opportunity to participate in the democratic process."

Powers v. Ohio, 499 U.S. 400, 407 (1991). As the guardian of that

right, "the trial judge is entrusted with the responsibility of

controlling courtroom proceedings and is bounded by the law and

the rules of the court." Gleaton, 446 N.J. Super. at 514 (quoting

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

Here, the trial judge failed to carry out this responsibility.

IV

Expert Witness Testimony

Dr. Jennifer Swartz, Bergen County Deputy Medical Examiner,

conducted M.T.'s autopsy and participated in the crime scene

investigation. Based on decedent's body temperature at the time

the police officers arrived at the scene and the condition of his

body, Dr. Swartz estimated that he died of asphyxia due to

suffocation between three and five o'clock in the morning of March

29, 2009.

Dr. Robert T. Latimer testified on defendant's behalf as an

expert in forensic psychiatry. Dr. Latimer met with defendant on

April 6, 2009, and again on January 29, 2010. After an initial

evaluation to assess defendant's competency to stand trial, Dr.

51 A-4041-11T4
Latimer concluded that defendant could not proceed to trial at the

time. He described defendant as "highly confused, distracted,

depressed" and unable to "intelligently appraise the circumstances

and her condition." According to Dr. Latimer, defendant did not

seem to understand why he had come to see her or what his function

was in these proceedings. Dr. Latimer testified that he was unable

to get information from defendant; she was "like a robot" and

talked "like a mechanical artifact." After their first meeting,

Dr. Latimer assigned her a GAF score of ten, and diagnosed her as

suffering from a brief psychotic disorder.

As Dr. Latimer explained, the disorder would feature

disorganized behavior, delusions, depression, homicidal and

suicidal thinking and noted the incoherence in defendant's police

statement. He opined that the incidents described by Maple Glen

staff, her family's concerns, her constant depression, and her

remarks about killing herself and M.T., were all signs of her

psychosis. Based on his review of the record, including materials

and conversations he had with defendant's family members, Dr.

Latimer opined defendant had an obsessive compulsive personality.

He also believed that she had been decompensating and was unable

to cope with her husband's illness. In his opinion, defendant's

inability to control the circumstances spiraling around her,

52 A-4041-11T4
coupled with the stressors related to M.T.'s illness, made her

deranged.

As a clinical term, Dr. Latimer defined "delusion" as "a

false belief that is elaborated in the mind of the person by a

process of mental illness" that is impermeable to logic. In his

view, defendant's delusion was her belief that she was going to

fix the family's problems by taking everyone to "a better world."

He thus opined that when defendant killed her husband, she was

suffering from a mental disease as a result
of which she was unable to understand that
what she was doing was wrong. And she was
unable to understand the consequences of those
acts. That she wasn't going to take him to a
better place. That she was killing him. And
you can't do that. She was unable to
understand the wrongfulness. It would have
been wrong in her mind to let him suffer. It
would have been wrong in her mind to go with
him and leave the kids alone. These were her
abnormal psychotic ideas of what was wrong
. . . . She had no concept of wrongfulness
at the time. She was at the end of [her] rope
. . . .

The court admitted Dr. Steven Simring as the State's mental

health expert. He met with defendant on July 1, 2010. Dr. Simring

disagreed with Dr. Latimer's medical findings and diagnosis that

defendant was clinically delusional and depressed when she killed

her husband. In Dr. Simring's opinion, defendant was merely "upset

and frustrated" and "angry." Although he noted that defendant had

obsessive traits, Dr. Simring opined she was markedly histrionic,

53 A-4041-11T4
theatrical, narcissistic and "self-centered . . . more than the

average person." He did not find that those traits were so

elevated as to constitute a psychiatric disorder. Dr. Simring

characterized the GAF score of ten that Dr. Latimer assigned to

defendant as "absurd." He acknowledged, however, that the

admitting physician at Bergen Regional had also assigned defendant

a GAF score of ten and specifically noted psychotic features.

Defendant argues that Dr. Simring improperly opined upon the

ultimate issue of defendant's guilt. Defendant also contends that

his presence in the courtroom violated the court's sequestration

order. However, because defendant did not raise these issues

before the trial court, we must review these arguments under the

plain error doctrine. R. 2:10-2. This means we must disregard

these arguments unless they are "of such a nature as to have been

clearly capable of producing an unjust result . . . ." Ibid.

We will address the "ultimate issue" argument first. The

record shows that as part of his direct testimony, the prosecutor

asked Dr. Simring the following questions:

Q. And Doctor . . . do . . . you know the
legal standard or legal definition of insanity
in the State of New Jersey . . . ?

A. Legal insanity and diminished capacity,
yes.

Q. Okay. Why don't you start first with legal
insanity. Tell us what your professional

54 A-4041-11T4
opinion is based on with a reasonable degree
of medical certainty.

A. Well, the Judge will charge you on legal
insanity, so I'm going to be very careful not
to overstep my . . . bounds. I'm just telling
you what I have found, and the way I see it.
Ultimately, you will reach that decision based
on the Judge's charge.

Legal insanity . . . contains two parts.
One, Part A, you have to have a serious mental
illness. And then, Part B, it has to lead to
something. Now the Legislature . . . or the
law never specifies in this State or any other
state exactly what the illness is supposed to
be. That's left to the professionals. But
it has to be serious.

. . . .

As a result of that serious mental
illness -- that's' Part A. Part B is that
either you didn't know the nature or quality
of your act, or, B, that you didn't know it
was wrong. Now that means that a person
suffering say from schizophrenia or a serious
bipolar disorder, which are serious mental
illnesses, or even a genuine brief psychotic
disorder would meet Part A if they have the
serious mental illness. But that alone is not
enough.

They then have to show how that illness
deprived them of one of three things. They
didn't know the nature of the act. They had
a gun, for example, and they didn't know it
was a gun. They thought it was a toy. Or
they had a bag, and they didn't know it was a
bag. They thought it was something else. They
didn't know the quality of the act. And that
means they thought that by putting the bag
over the mouth, they thought it was giving
oxygen. And this is not necessarily because
of low intelligence. It could be because of

55 A-4041-11T4
 a delusion. God told you this bag has oxygen.
And this happens.

Or, number three, because of this mental
illness, you did what you did because you
thought it was right. And the . . . clearest
example of that is . . . someone who say shoots
a stranger because he believes that the
stranger has this water bottle, and this is a
gun, and sees the gun, and genuinely hears God
telling him it's a gun, and shoots this
stranger in what he believes to be self-
defense. Self-defense is not wrong.

So it is my testimony that [defendant]
does not meet any of the prongs of the insanity
defense. She does not have a significant
mental illness. She was certainly upset and
overwhelmed, but that's not [an] illness. She
knew the nature of the act. That this was a
bag. She knew what a bag could do. In fact,
that was her specific intent. And she knew
that what she was doing was wrong, even if she
at that point thought she had good
justification.

As defined in our Criminal Code, insanity excuses a defendant

from being responsible for the crime. The Code defines legal

insanity as follows:

A person is not criminally responsible
for conduct if at the time of such conduct he
was laboring under such a defect of reason,
from disease of the mind as not to know the
nature and quality of the act he was doing,
or if he did know it, that he did not know
what he was doing was wrong.

[N.J.S.A. 2C:4-1.]

As an affirmative defense, defendant has the burden to prove,

by a preponderance of the evidence, that she "was laboring under

56 A-4041-11T4
such a defect of reason, from disease of the mind as not to know

the nature and quality of the act [she] was doing, or if [she] did

know it, that [she] did not know what [she] was doing was wrong."

Ibid. Although the statute does not define "preponderance of the

evidence," the model charge on "insanity" includes the following

definition:

The term "preponderance of the evidence"
means the greater weight of credible evidence
in the case. It does not necessarily mean the
evidence of the greater number of witnesses
but means that evidence which carries the
greater convincing power to your minds.

Keep in mind, however, that although the
burden rests upon the defendant to establish
the defense of insanity by a preponderance of
the credible evidence, the burden of proving
the defendant guilty of the offense charged
here beyond a reasonable doubt is always on
the State, and that burden never shifts.

[Model Jury Charges (Criminal), "Insanity
(N.J.S.A. 2C:4-1)" (approved Oct. 17, 1988).]

Distilled to its essence, "one who meets the test for insanity,

that is, one who lacks the ability to distinguish between right

and wrong, is thereby excused from criminal culpability." State

v. Gorthy, 226 N.J. 516, 533 (2016) (quoting State v. Handy, 215

N.J. 334, 357 (2013)).

In State v. Singleton, 211 N.J. 157, 177 (2012), the Court

revisited its holding in State v. Worlock, 117 N.J. 596, 610

(1990), and reaffirmed "that legal and moral wrong are usually

57 A-4041-11T4
'coextensive,' especially when the criminal act at issue is murder

. . . ." Singleton, 211 N.J. at 177. The Court also noted that

"in the odd case in which a defendant is able to recognize that

his actions are legally wrong but is nonetheless incapable of

understanding that they are morally wrong, we held that 'the court

should instruct the jury that 'wrong' encompasses both legal and

moral wrong.'" Ibid. (quoting Worlock, 117 N.J. at 611).

Here, there is no question that expert psychiatric testimony

was properly admitted under N.J.R.E. 702 because psychiatry, as a

field of medicine, is beyond the ken of the average juror.

Psychiatric testimony was necessary to assist the jury in

determining whether, at the time she took her husband's life,

defendant was "laboring under such a defect of reason, from disease

of the mind as not to know the nature and quality of the act

. . . or if [defendant] did know it, that [she] did not know that

what [she] was doing was wrong." N.J.S.A. 2C:4-1. See also State

v. Odom, 116 N.J. 65, 71 (1989).

In State v. Simms, 224 N.J. 393, 396 (2016), the Court

reaffirmed its holding in Cain, that "an expert's opinion on the

defendant's state of mind encroaches on the exclusive domain of

the jury as trier of fact." Simms, 224 N.J. at 396. Here, the

prosecutor asked Dr. Simring to explain to the jury the concept

of "legal insanity" and then to opine on whether defendant's

58 A-4041-11T4
conduct satisfied the elements of this affirmative defense. As

the following excerpt from Dr. Simring's testimony shows, the

State's expert witness' response usurped the jury's role by making

a definitive declaration of this jury question:

[Defendant] does not meet any of the prongs
of the insanity defense. She does not have a
significant mental illness. She was certainly
upset and overwhelmed, but that's not [an]
illness. She knew the nature of the act. That
this was a bag. She knew what a bag could do.
In fact, that was her specific intent. And
she knew that what she was doing was wrong,
even if she at that point thought she had good
justification.

[(Emphasis added).]

In Cain, the Supreme Court reaffirmed its prior holding in

State v. Reeds, 197 N.J. 280, 284-85 (2009), that an expert's

"ultimate-issue testimony" usurps the "jury's singular role in the

determination of defendant's guilt and irredeemably taints the

remaining trial proofs." Cain, 224 N.J. at 424 (quoting Reeds,

197 N.J. at 300). Although defense counsel did not object at the

time Dr. Simring gave this testimony, this colossal error was

clearly capable of producing an unjust result.

Defendant had lived a conventional, law abiding life until

the day she suffocated her husband, and attempted to kill herself

and her two children. The evidence presented to the jury at trial

showed this aberrational behavior by defendant was preceded by a

59 A-4041-11T4
stroke suffered by her then fifty-year-old husband that left him

paralyzed and completely dependent on defendant for all of his

needs. M.T.'s devastating health crisis also had catastrophic

financial consequences on the family. Defendant was the only

income-producing person; M.T.'s immediate and long-term needs were

not covered by insurance or Medicaid. A number of witnesses at

trial described defendant's behavior on the days leading to her

husband's discharge from the rehabilitation facility as

obsessively preoccupied with the numerous problems, both practical

and financial, associated with M.T.'s homecare.

The enormity of these problems became manifest to defendant

on the day M.T. arrived home after he was discharged from the

rehabilitation facility. Defendant's burden of proof under the

insanity defense required her to convince the jury that the greater

weight of credible evidence showed that she was not mentally

capable of distinguishing right from wrong when she committed

these horrific crimes. Dr. Simring's testimony usurped the jury's

exclusive role to determine whether defendant satisfied her burden

of proof. The fact that the jury was allowed to consider this

critically improper testimony denied defendant her right to a fair

trial.

60 A-4041-11T4
 V

Based on this conclusion, we do not reach defendant's

remaining arguments. Defendant's conviction is reversed. The

matter is remanded to the Criminal Part for retrial or for such

other disposition as may be warranted. We do not retain

jurisdiction.

61 A-4041-11T4