STATE OF NEW JERSEY VS. KENNETH D. HARDEN (17-04-0387 AND 17-03-0190, CUMBERLAND COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5935-17

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KENNETH D. HARDEN,
a/k/a KENNETH HARDEN,
and BK BABY K,

Defendant-Appellant.
________________________

Argued January 13, 2021 – Decided June 10, 2021

Before Judges Accurso, Vernoia and Enright.

On appeal from the Superior Court of New Jersey, Law
Division, Cumberland County, Indictment Nos. 17-03-
0190 and 17-04-0387.

Peter T. Blum, Assistant Deputy Public Defender,
argued the cause for appellant (Joseph E. Krakora,
Public Defender, attorney; Peter T. Blum, of counsel
and on the brief).

Andre R. Araujo, Assistant Prosecutor, argued the
cause for respondent (Jennifer Webb-McRae,
 Cumberland County Prosecutor, attorney; Andre R.
Araujo, of counsel and on the brief).

PER CURIAM

A jury convicted defendant Kenneth D. Harden of unlawful possession of

a weapon, certain persons not to have weapons, and possession of a controlled

dangerous substance (CDS). The court imposed an aggregate twenty-year

sentence with a ten-year period of parole ineligibility. Defendant appeals from

his convictions and sentence, and we reverse and remand for a new trial because

the court erred by denying defendant's motion to suppress statements he made

during a custodial interrogation and by improperly instructing the jury it was

obligated to reach a unanimous verdict after reporting it was deadlocked.

I.

In November 2016, a grand jury indicted defendant for charges arising out

of an April 29, 2016 incident during which a handgun and heroin were found in

an automobile defendant was observed driving and had just exited. The

indictment charged defendant with: second-degree unlawful possession of a

weapon, N.J.S.A. 2C:39-5(b)(1); third-degree possession of CDS, heroin,

N.J.S.A. 2C:35-10(a)(1); third-degree possession with intent to distribute CDS,

heroin, N.J.S.A. 2C:35-5(a)(1) and -5(b)(3); third-degree possession with intent

to distribute CDS in a school zone, N.J.S.A. 2C:35-7(a); and second-degree

A-5935-17
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possession of a weapon by a convicted person, N.J.S.A. 2C:39-7(b)(1).

Defendant was represented by counsel at his January 17, 2017 arraignment on

the charges in the indictment.

On February 1, 2017, defendant was arrested on charges arising out of an

alleged attempted murder on April 28, 2016, the day before the incident that

gave rise to the offenses charged in the indictment. Ballistics testing revealed

the gun used in the April 28, 2016 alleged attempted murder was the same gun

recovered from the automobile on April 29, 2016 and for which defendant was

charged with possessory offenses in the indictment.

Immediately following his arrest on February 1, 2017, a detective spoke

with defendant. Prior to advising defendant of his Miranda1 rights and outside

of the presence of counsel representing defendant on the charges in the

indictment, the detective told defendant the gun used in the alleged attempted

murder was the same gun defendant "got caught with" the following day. In

response, defendant said, "I wasn't the only one in the car with that gun."

Defendant later also stated, "It wasn't my gun."

In April 2017, a grand jury returned a superseding indictment that

included charges related to the April 28 and 29, 2016 incidents. The indictment

1
Miranda v. Arizona, 384 U.S. 436 (1966).
A-5935-17
3
charged that on April 28, 2016, defendant committed the following offenses:

second-degree possession of a community gun for an unlawful purpose, N.J.S.A.

2C:39-4(a)(2), and second-degree unlawful possession of a weapon, N.J.S.A.

2C:39-5(b)(1). The indictment charged the following offenses related to the

April 29, 2016 incident involving the automobile: second-degree possession of

a weapon while committing the offense of possession of heroin with intent to

distribute, N.J.S.A. 2C:39-4.1(a); second-degree unlawful possession of a

weapon, N.J.S.A. 2C:39-5(b)(1); third-degree possession of heroin with intent

to distribute, N.J.S.A. 2C:35-5(a)(1) and -5(b)(3); and third-degree possession

of heroin, N.J.S.A. 2C:35-10(a)(1). The superseding indictment also charged

defendant with second-degree certain persons not to possess weapons, N.J.S.A.

2C:39-7(b)(1), on April 28 and 29, 2016.

The court later dismissed all charges based on the alleged April 28, 2016

incident. A bifurcated trial proceeded on the five charges arising out of the April

29, 2016 incident. Prior to trial, defendant moved to suppress the February 1,

2017 statements he made to the detective following his arrest on the charges

related to the April 28, 2016 incident. Defendant argued the statements were

obtained in violation of his Miranda rights and his right to remain silent. The

court held an evidentiary hearing and denied the motion, finding that although

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defendant was in custody when the statements were made, the statements were

not the product of an interrogation. Defendant moved for reconsideration,

arguing the court erred in the first instance by denying the motion and also that

the statements were obtained in violation of his right to counsel who, at the time,

represented him in connection with the then-pending initial indictment charging

him with the offenses related to the April 29, 2016 automobile incident. The

court denied the reconsideration motion.

The evidence at trial showed that on April 29, 2016, officers were looking

for defendant and observed him driving a silver Chevy Impala that was

registered to his mother. A detective testified he had previously seen defendant

driving the car, but he did not know who else had access to it and he had not

seen defendant driving it on the days immediately prior to April 29.

Shortly after the officers saw the car, defendant drove it into a parking lot,

stopped, and got out. Officers immediately approached defendant, who was the

car's sole occupant. While the officers waited for a tow truck to move the car to

another location to be searched, defendant's mother appeared and asked to take

the car. The officers denied the request.

A subsequent search of the car revealed: a loaded handgun magazine in

the center console; a loaded, operable handgun under the front passenger seat;

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and a brown box under the front passenger seat in which the officers found a

digital scale, 137 unused wax paper folds, and a plastic bag containing 2.5 grams

of heroin. The search of the car's center console also yielded a pill bottle for an

April 26, 2016 prescription issued to defendant, and a bank card and

identification card, both of which were issued in defendant's name. In the car's

trunk, officers found a piece of mail dated April 5, 2015, addressed to defendant.

The State tested the gun for fingerprints and DNA, but none was discovered

linking defendant to the weapon.

Defendant argued at trial the State failed to prove beyond a reasonable

doubt the gun belonged to him or was possessed by him. Defendant asserted the

car was not registered to him; others, including his mother, had access to it; and

the State lacked forensic evidence linking him to the weapon. The State argued

the other items found in the car—each of which referred to defendant—showed

defendant had control over, and possessed, all the items in the car. The State

also argued defendant's February 1, 2017 statement to the detective—that

defendant "wasn't the only one in the car with that gun. Guns get passed around

all the time"—was, "at the very least," an admission by defendant that he jointly

possessed the gun.

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 In the initial phase of the bifurcated trial, the jury found defendant not

guilty of possession of heroin with intent to distribute and unlawful possession

of a weapon while committing a CDS offense. The jury found defendant guilty

of second-degree unlawful possession of a weapon and third-degree unlawful

possession of heroin. In the second phase of the trial, the jury found defendant

guilty of second-degree certain persons not to have weapons.

At sentencing, the court found aggravating factors three, the risk

defendant will commit another offense, N.J.S.A. 2C:44-1(a)(3), six, the nature

and extent of defendant's prior record, N.J.S.A. 2C:44-1(a)(6), and nine, the

need to deter defendant and others from violating the law, N.J.S.A. 2C:44 -

1(a)(9); found no mitigating factors, see generally N.J.S.A. 2C:44-1(b)(1) to

(14); and determined the aggravating factors substantially outweighed the

mitigating factors. The court sentenced defendant to eight years with a four -

year period of parole ineligibility for second-degree unlawful possession of a

weapon, to run concurrently with defendant's four-year sentence for third-degree

possession of CDS, heroin. The court also imposed an extended term twelve-

year sentence with a six-year period of parole ineligibility on defendant's

conviction for second-degree certain persons not to have weapons, to run

consecutively to the sentence imposed on the unlawful possession of a weapon

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and possession of CDS charges. Thus, the court imposed an aggregate twenty-

year sentence with a ten-year period of parole ineligibility on the charges in the

superseding indictment. The court further directed that the twenty -year

aggregate sentence run consecutive to concurrent five-year sentences the court

imposed on charges in an unrelated indictment to which defendant pleaded

guilty following his convictions at trial.2

Defendant appealed from his convictions and the sentence imposed on the

charges in the superseding indictment. He offers the following arguments on

appeal:

POINT I

[DEFENDANT'S] STATEMENTS SHOULD BE
SUPPRESSED AND A NEW TRIAL SHOULD BE
GRANTED (A) BECAUSE OF A VIOLATION OF
HIS SIXTH-AMENDMENT RIGHT TO COUNSEL
AND (B) BECAUSE OF A FIFTH-AMENDMENT
MIRANDA VIOLATION.

A. The Detective Should Not Have Tried to Question
[Defendant] About the Indicted Case Because
[Defendant's] Assigned Counsel Was Not Present.

2
Following trial on the charges in the superseding indictment but prior to
sentencing, defendant pleaded guilty to two CDS-related charges in another
indictment (Indictment 17-03-0190) that was unrelated to the charges arising
from the April 29, 2016 incident. Defendant was sentenced on those unrelated
charges the same day he was sentenced for his convictions by the jury.
Defendant does not appeal from his convictions or sentence under Indictment
17-03-0190.
A-5935-17
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 B. Alternatively, the Detective Should Have
Administered Miranda Warnings Before Confronting
[Defendant] with the Evidence and Asking Him to Talk
Because this Discussion Was Reasonably Likely to
Elicit an Incriminating Response.

POINT II

THE TRIAL COURT COMMIT[T]ED PLAIN ERROR
BY CONTRADICTING THE BEYOND-A-
REASONABLE-DOUBT STANDARD AND
INSTRUCTING THAT THE JURORS COULD
CONVICT IF THEY INFERRED THAT
POSSESSION WAS "MORE PROBABLE THAN
NOT."

POINT III

THE TRIAL COURT PLACED UNDUE PRESSURE
ON THE DELIBERATING JURY TO REACH [AN]
AGREEMENT BY ORDERING ONE JUROR TO
CONTINUE DELIBERATING WITHOUT
ADEQUATELY INQUIRING INTO HER REQUEST
TO BE EXCUSED AND THEN DELIVERING AN
UNBALANCED INSTRUCTION TO THE
DEADLOCKED JURY THAT IMPOSED AN
"OBLIGATION" TO AGREE.

POINT IV

[DEFENDANT] SHOULD BE RESENTENCED
BECAUSE THE COURT FAILED TO APPLY THE
YARBOUGH3 FACTORS IN IMPOSING
CONSECUTIVE SENTENCES ON TWO GUN
POSSESSION CHARGES THAT WERE BASED ON
THE SAME GUN AND BECAUSE THOSE

3
State v. Yarbough, 100 N.J. 627 (1985).
A-5935-17
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 FACTORS WOULD HAVE WEIGHED
OVERWHELMINGLY AGAINST SUCH A
SENTENCE.

We address each of defendant's arguments in turn.

II.

Defendant argues his convictions should be reversed because the court

erred by denying his motion to suppress statements he made following his

February 1, 2017 arrest and by admitting the statements at trial. More

particularly, he contends his statements were improperly obtained during a

custodial interrogation without the administration of Miranda rights. He also

contends the detective violated his Sixth Amendment right to counsel by

speaking to him about the alleged April 28, 2016 attempted murder involving

the same gun he was under indictment for possessing on April 29, 2016, in the

absence of the attorney representing him on the charges in the indictment.

"Generally, on appellate review, a trial court's factual findings in support

of granting or denying a motion to suppress must be upheld when 'those findings

are supported by sufficient credible evidence in the record.'" State v. A.M., 237

N.J. 384, 395 (2019) (quoting State v. S.S., 229 N.J. 360, 374 (2017)). An

appellate court should not disturb a trial court's findings unless "they are so

clearly mistaken 'that the interests of justice demand intervention and

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correction.'" State v. Elders, 192 N.J. 224, 244 (2007) (quoting State v. Johnson,

42 N.J. 146, 162 (1964)). "An appellate court owes no deference, however , to

'conclusions of law made by lower courts in suppression decisions'" and review s

such decisions de novo. A.M., 237 N.J. at 396 (quoting State v. Boone, 232 N.J.

417, 426 (2017)).

A.

"The right against self-incrimination is guaranteed by the Fifth

Amendment to the United States Constitution and this state's common law, now

embodied in statute, N.J.S.A. 2A:84A-19, and evidence rule, N.J.R.E. 503."

S.S., 229 N.J. at 381 (quoting State v. Nyhammer, 197 N.J. 383, 399 (2009)).

To protect a person's right against self-incrimination, a person in custody

must be warned prior to any questioning that he has the
right to remain silent, that anything he says can be used
against him in a court of law, that he has the right to the
presence of an attorney, and that if he cannot afford an
attorney one will be appointed for him prior to any
questioning if he so desires.

[Miranda v. Arizona, 384 U.S. 436, 479 (1966).]

The purpose of the Miranda warnings is to protect a suspect from the "inherently

coercive atmosphere of custodial interrogation." A.M., 237 N.J. at 397.

"Miranda warnings are required 'whenever a person in custody is

subjected to either express questioning or its functional equivalent.'" State v.

A-5935-17
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Wright, 444 N.J. Super. 347, 363 (App. Div. 2016) (quoting Rhode Island v.

Innis, 446 U.S. 291, 300-01 (1980)); see also In re A.A., 240 N.J. 341, 354

(2020) (explaining our Supreme Court "has adopted the Innis standard"); State

v. Bey, 112 N.J. 45, 68 n.13 (1988) (adopting the Innis standard for defining an

interrogation in New Jersey). For purposes of the administration of Miranda

rights, an interrogation consists "not only [of] express questioning, but

also . . . any words or actions . . . (other than those normally attendant to arrest

and custody) that the police should know are reasonably likely to elicit an

incriminating response [whether inculpatory or exculpatory] from the suspect."

Wright, 444 N.J. Super. at 364 (fourth alteration in original) (quoting Innis, 446

U.S. at 301). "The latter portion of the definition" of interrogation—pertaining

to words or actions the police should know are reasonably likely to elicit an

incriminating response—"focuses primarily on the perceptions of the suspect,

rather than the intent of the police." State v. Mallozzi, 246 N.J. Super. 509, 515

(App. Div. 1991) (citing Innis, 446 U.S. at 301). An "incriminating response"

is "any response—whether inculpatory or exculpatory—that the prosecution

may seek to introduce at trial." State v. Ward, 240 N.J. Super. 412, 418 (App.

Div. 1990) (quoting Innis, 446 U.S. at 301 n.5).

A-5935-17
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 "[B]ooking procedures and the routine questions associated [with that

process] are ministerial in nature" and do not constitute interrogation. State v.

Bohuk, 269 N.J. Super. 581, 593 (App. Div. 1994) (second alteration in original)

(quoting Mallozzi, 246 N.J. Super. at 515). Likewise, "unexpected

incriminating statements made by in custody defendants in response to no n-

investigative questions by the police without prior Miranda warnings are

admissible." State v. M.L., 253 N.J. Super. 13, 21 (App. Div. 1991).

In contrast, "[t]he initiation of a general discussion about the victim

clearly satisfies [the Innis] standard," as does a "generalized discussion relating

to [the] investigation." Bey, 112 N.J. at 68 n.13 (citing Christopher v. Florida,

824 F.2d 836, 845 (11th Cir. 1987)). For example, in Wright, we found the

functional equivalent of an interrogation where a defendant in custody made

inculpatory statements after detectives advised him that he fit the description of

the perpetrator of an armed robbery, a victim was being brought to identify him,

and the officers located a gun near where the defendant stood. 444 N.J. Super.

at 365-66. We found "the officer should surely have known that his meting out

of the information in the way he did was reasonably likely to evoke an

incriminating response, and thus . . . it amounted to an interrogation." Id. at 366.

In Ward we found a custodial investigation under the Innis standard where a

A-5935-17
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detective visited a defendant in his cell after he had been booked and showed

him photographs of two suspects in a robbery in which he was also a suspect.

240 N.J. Super. at 417. Similarly, in State v. Brown, we found a custodial

interrogation where a detective gave a defendant in custody a "detailed and

apparently well-prepared" presentation of evidence against him, prompting the

defendant to make statements concerning the crimes under investigation. 282

N.J. Super. 538, 550 (App. Div. 1995).

Here, it is undisputed defendant was in custody when he spoke with the

detective on February 1, 2017. The court, however, found defendant was not

subject to an interrogation because the detective did no more than tell defendant

why he had been arrested and ask if defendant wanted to talk. The court also

found the detective did not "ask[ defendant] a specific question other than, do

you want to talk about this?"

The court ignored that under the Innis standard, a custodial interrogation

does not require direct questioning, but instead may consist of its functional

equivalent, Wright, 444 N.J. Super. at 363, including a generalized discussion

of the evidence against the defendant, see Bey, 112 N.J. at 68 n.13. To be sure,

the detective properly advised defendant of the charges against him and inquired

generally if defendant wanted to speak with him, but the detective did not stop

A-5935-17
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there. The detective moved beyond proper ministerial booking questions, see

Mallozzi, 246 N.J. Super. at 514-16, and discussed the evidence against

defendant. The detective explained defendant was "caught with a[] gun" on

April 29, 2016 that "came back to a shooting from the day before," and defendant

was therefore charged with attempted murder and possessory weapons offenses.

Moments later, the detective continued to detail the evidence against

defendant, stating "this shooting happened in April or April 28 at like 9:30

around about and then 4:30 the next day you got caught with the gun, so . . . ."

The detective's point was well-made; the State had a seemingly strong case

against defendant because the evidence showed he possessed a handgun on April

29, 2016 that was used the day before to commit an alleged attempted murder.

Defendant responded, interrupting the detective, making the inculpatory

statement the State sought to be admitted at trial. Defendant said, "I wasn't the

only one in the car with that gun. Guns get passed around all the time."

The detective's summary of the evidence, linking the gun defendant

allegedly possessed on April 29, 2016 with the shooting that occurred hours

earlier on the previous day, exceeded the permissible routine and ministerial

questioning of defendant for booking and other administrative purposes that

does not constitute a custodial interrogation requiring Miranda warnings. Cf.

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Mallozzi, 246 N.J. Super. at 514-16; State v. Cunningham, 153 N.J. Super. 350,

352, 354 (App. Div. 1977). The detective's failure to offer any explanation for

supplying defendant with the summary of the evidence permits the inference the

detective's explanation was not provided inadvertently. Wright, 444 N.J. Super.

at 366. The detective's summary of the evidence linking defendant to the

attempted murder represented a subtle but effective coercive strategy that

evoked defendant's inculpatory statements.

Defendant's statements were "not simply a spontaneous outburst elicited

casually or innocently without the State's purposeful enticement or

encouragement." Ward, 240 N.J. Super. at 417. Defendant responded, as could

reasonably be expected when he was confronted with seemingly compelling

evidence he committed a very serious crime, with a statement refuting the

detective's claim he was "caught with [the] gun" allegedly involved in the

attempted murder. See Wright, 444 N.J. Super at 366. Thus, the detective's

summary of that evidence was the functional equivalent of an interrogation that

first required the administration of Miranda warnings. See Bey, 112 N.J. at 68

n.13; Wright, 444 N.J. Super. at 365-67. The failure to provide the warnings

prior to defendant making the statements required suppression of the statements

at trial. See State v. Hubbard, 222 N.J. 249, 272 (2015) (finding statements

A-5935-17
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made during a custodial interrogation without the administration of Miranda

warnings "must be suppressed"). The court erred by finding otherwise.

B.

Defendant also claims his statements to the detective should have been

suppressed because he was deprived of his right to counsel. Both our federal

and state constitutions guarantee the right to counsel in a criminal prosecution.

U.S. Const. amend. VI; N.J. Const. art. I, ¶ 10. "[T]he right to counsel 'is

triggered when "adversary judicial proceedings have been initiated."'" State v.

A.G.D., 178 N.J. 56, 63 (2003) (quoting State v. Sanchez, 129 N.J. 261, 265

(1992)); see also Kirby v. Illinois, 406 U.S. 682, 688 (1972). It is undisputed

that an "[i]ndictment triggers the onset of the formal adversarial judicial

process." State v. Wint, 236 N.J. 174, 203 (2018); see also Kirby, 406 U.S. at

688-89.

The "Sixth Amendment right to counsel is 'offense specific' in its

attachment." State v. Harris, 181 N.J. 391, 435 (2004); see also Texas v. Cobb,

532 U.S. 162, 164 (2001). Our Supreme Court has observed, however, that "[i]f

the offense under investigation is based on essentially the same factual context

as the charged offense, assertion of the Sixth Amendment right to counsel on

the charged offense should bar police-initiated interrogation on the related

A-5935-17
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offense." State v. Tucker, 137 N.J. 259, 278 (1994). On the other hand, the

police may interview a represented defendant "concerning a totally unrelated"

offense. Id. at 276 (citing McNeil v. Wisconsin, 501 U.S. 171, 175-76 (1991)).

The alleged April 28 and 29, 2016 incidents involved some separate

offenses. The April 29, 2016 incident included possessory CDS offenses, and

the April 28, 2016 incident included allegations of attempted murder. The

incidents, however, share a common factual context and criminal offenses that

were at the center of the detective's February 1, 2017 interrogation of defendant.

In both incidents, defendant was accused of unlawful possession of the same

handgun, and, more importantly, as explained by the detective on February 1,

2017, defendant's alleged possession of the handgun on April 29, 2016,

established his participation in the attempted murder with the handgun on the

preceding day, April 28, 2016. The detective focused on defendant's alleged

possession of the handgun on April 29, 2016, stating defendant was "caught with

[the] gun," as evidence establishing defendant's participation in the alleged

attempted murder on the previous day.

The detective spoke to defendant about facts common to both the new

charges based on the alleged April 28, 2016 attempted murder and the April 29,

2016 possessory weapons offenses for which defendant had already been

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indicted and was represented by counsel. The detective expressly sought to

speak with defendant about the gun defendant had already been charged in an

indictment with possessing, and the use of the gun in an alleged attempted

murder.

The detective told defendant they could "[t]alk about [whose] gun it was."

That comment was not limited to an inquiry about wholly unrelated offenses

allegedly committed on April 28 and 29, 2016. It was directed to facts—

ownership and possession of the handgun—and offenses—possessory weapons

offenses—common to the April 28, 2016 alleged attempted murder, as well as

to the April 29, 2016 incident for which defendant had been charged in an

indictment and was represented by counsel. And the detective's questioning

evoked an inculpatory statement from defendant that the State introduced at the

trial on the indictment charging defendant with offenses based solely on the

April 29, 2016 incident. Because defendant had been indicted and was

represented by counsel on the charges in the indictment when the February 1,

2017 interrogation occurred in the absence of defendant's counsel, defendant's

right to counsel was violated and his statements should have been suppressed.

See Tucker, 137 N.J. at 278.

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 We reject the State's argument to the contrary. The State relies on Harris,

claiming defendant's Sixth Amendment right to counsel was not violated. In

Harris, the defendant murdered a woman with a gun and hid the body. 181 N.J.

at 425. Ten days after the woman went missing, officers arrested the defendant

on a weapons charge. Id. at 433. Several months later, the defendant became a

suspect in the woman's disappearance, and an officer involved in the

investigation encouraged the defendant's accomplice to write a letter to the

defendant about the missing woman. Id. at 433-34. The defendant responded

to the accomplice's letter, and his response was admitted into evidence at trial.

Id. at 434-35. Notably, when officers arrested the defendant for the weapons

charge, and spoke to the defendant's accomplice, they did not know the weapon

the defendant was charged with possessing was also the weapon used in the

woman's murder. Id. at 433.

The Court found the defendant's Sixth Amendment right to counsel had

not attached to his murder charge when the officers employed the accomplice to

write the letter to the defendant because the officers did not know at the time the

defendant was charged with possessing the gun that it was the murder weapon,

nor did the officers know it was the murder weapon when they encouraged the

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accomplice to write a letter to the defendant. Id. at 435-36. Thus, the Court

found no Sixth Amendment violation. Ibid.

Unlike in Harris, here the detective knew during the February 1, 2017

interrogation that the gun defendant was charged with possessing on April 29,

2016 was also the gun used in the shooting on April 28, 2016. Indeed, the

detective used that fact as a means to evoke defendant's statements. In addition,

the detective would have known any information defendant revealed about

possession and ownership of the gun would inculpate defendant on the charges

for which he had been indicted and was represented by counsel. No similar

circumstances were extant in Harris.

Further, and as noted, the State admitted defendant's statements into

evidence at the trial on the charges arising from the April 29, 2016 incident—

charges for which defendant had been indicted when he made the statements. In

contrast, in Harris, the State sought to admit the defendant's statements into

evidence at the trial pertaining to the defendant's homicide charges, not the

unrelated weapons charges for which the defendant's Sixth Amendment rights

had attached when he made the statements. Id. at 433-36.

We are therefore convinced defendant's Sixth Amendment right to counsel

was violated by the detective's February 1, 2017 interrogation. Defendant's

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statements should have been suppressed for that reason. See Sanchez, 129 N.J.

at 279 (finding the defendant's statements made in violation of his Sixth

Amendment right to counsel should not have been admitted at trial).

C.

Based on our review of the record, we are also persuaded that admission

of defendant's statements from the February 1, 2017 interrogation in violation

of his Miranda rights, his right to remain silent, and his right to counsel warrants

reversal of his convictions. Where, as here, a defendant challenged the

admissibility of his or her statements obtained during an interrogation, we will

not reverse a conviction unless the court's error is "clearly capable of producing

an unjust result." State v. J.R., 227 N.J. 393, 417 (2017) (quoting R. 2:10-2).

We will not find an error harmless "if there is a reasonable doubt as to whether

the error contributed to the verdict." Ibid. The error "must be real [and]

sufficient to raise a reasonable doubt as to whether [it] led the jury to a verdict

it otherwise might not have reached." Ibid. (alterations in original) (quoting

State v. Lazo, 209 N.J. 9, 26 (2012)).

The evidence against defendant was circumstantial. The gun and CDS

found were under the passenger seat of a car defendant did not own. There was

no evidence establishing how long defendant used the car prior to him being

A-5935-17
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observed by the police driving it on April 29, 2016. We appreciate there was

other evidence—the prescription bottle, bank and identification cards, and mail

bearing defendant's name—that support the jury's verdict, but the State argued

defendant's statements during the February 1, 2017 interrogation constituted

direct evidence of defendant's possession of the gun—a purported admission by

defendant that, "[a]t the very least," he jointly possessed the gun. In our view,

admission of defendant's statements raises a reasonable doubt as to whether error

in admitting the statements contributed to the jury's verdict because acceptance

of the purported admission would have removed any doubt concerning

defendant's possession of the gun and CDS otherwise hidden from view in the

vehicle. The error was therefore not harmless and requires reversal of

defendant's convictions.

III.

We also address defendant's argument, raised for the first time on appeal,

that the court committed plain error by instructing the jurors in accordance with

Model Jury Charges (Criminal), "Possession of Firearms, Weapons, Destructive

Devices, Silencers or Explosives in a Vehicle (N.J.S.A. 2C:39-2)" (approved

Mar. 30, 1993). Defendant claims the instruction permitted the jurors to convict

him on the possessory gun offenses if they inferred possession of the handgun

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23
was "more probable than not." Defendant argues the charge erroneously

undermines the requirement that the State prove every element of a crime

beyond a reasonable doubt.

Where "a defendant fails to raise an issue at trial, appellate review is

governed by the plain error standard." State v. Maloney, 216 N.J. 91, 104

(2013). In a jury charge context, plain error is "[l]egal impropriety in the charge

prejudicially affecting the substantial rights of the defendant sufficiently

grievous to justify notice by the reviewing court and to convince the court that

of itself the error possessed a clear capacity to bring about an unjust result."

State v. Kornberger, 419 N.J. Super. 295, 301 (App. Div. 2011) (alteration in

original) (quoting State v. Torres, 183 N.J. 554, 564 (2005)).

Here, the court gave the following instruction:

With regard to the issue of possession—I’m
sorry. I have previously instructed you concerning your
consideration of circumstantial evidence presented in
this case.
That is, you may infer a fact from other facts in
the case if you find it more probable than not that the
inferred fact is true.
Evidence has been presented that a handgun was
found in the vehicle. If you find that the [d]efendant
was the sole occupant of the vehicle, you may infer that
this occupant possessed the handgun.
Furthermore, if you find that the vehicle had
more than one occupant, you may infer that the

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24
 handgun was possessed by all of the occupants. You
are never required or compelled to draw any inference.
It is your exclusive province to determine
whether the facts and circumstances shown by the
evidence support any inferences and you are always
free to accept or reject them, if you wish.

The instruction is identical in all material respects to the model jury charge. See

Model Jury Charges (Criminal), "Possession of Firearms, Weapons, Destructive

Devices, Silencers or Explosives in a Vehicle (N.J.S.A. 2C:39-2)" (approved

Mar. 30, 1993).

We disagree with defendant's claim the model jury charge permitted the

jurors to "convict if they inferred that possession [of the handgun] was 'more

probable than not.'" The model jury charge is derived from N.J.S.A. 2C:39-2,

which states in relevant part, "When a firearm . . . is found in a vehicle, it is

presumed to be in the possession of the occupant if there is but one. If there is

more than one occupant in the vehicle, it shall be presumed to be in the

possession of all . . . ." N.J.S.A. 2C:39-2(a). In State v. Bolton, we considered

N.J.S.A. 2C:39-2 and determined a jury could not be instructed that it may

"presume" something; instead, "the jury may be advised that it can draw an

inference if it finds it more probable than not that the inference is true." 230

N.J. Super. 476, 480 (App. Div. 1989).

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 The Supreme Court has also explained that "[a]n inference reasonably

may be drawn when 'it is more probable than not that the inference is true; the

veracity of each inference need not be established beyond a reasonable doubt in

order for the jury to draw the inference.'" State v. Thomas, 132 N.J. 247, 256

(1993) (quoting State v. Brown, 80 N.J. 587, 592 (1979)). The Court has

cautioned, however, that "the State must still be held to its burden of proving

each element of [an] offense beyond a reasonable doubt." Ibid. An inference

charge "reduce[s] the burden of persuasion below a 'reasonable doubt' standard,"

but "only if the jury were compelled to draw the inference and convict on th[at]

basis . . . alone." State v. Humphreys, 54 N.J. 406, 415 (1969) (quoting State v.

DiRienzo, 53 N.J. 360, 376 (1969)). Thus, a court must inform a jury that "an

inference of one fact from another is never binding." Ibid.

In our assessment of a challenge to a jury charge, we must read the charge

"'as a whole in determining whether there was any error,' and the effect of any

error must be considered 'in light of the overall strength of the State's case.'"

State v. Gonzalez, 444 N.J. Super. 62, 70-71 (App. Div. 2016) (citations

omitted). Although "trial courts and counsel must review charges for potential

error, even in model jury charges," State v. Docaj, 407 N.J. Super. 352, 370

(App. Div. 2009), courts should also instruct the jury using the applicable model

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jury charges that are "consistent" with our laws, see State v. Rodriguez, 365 N.J.

Super. 38, 53 (App. Div. 2003); see also State v. R.B., 183 N.J. 308, 325 (2005);

Flood v. Aluri-Vallabhaneni, 431 N.J. Super. 365, 383-84 (App. Div. 2013).

Here, the court relied on the model jury charge, which was applicable

based on the evidence presented and consistent with N.J.S.A. 2C:39-2 and case

law concerning presumptions and inferences in jury charges. See, e.g., Bolton,

230 N.J. Super. at 479-81. The court did not instruct the jury to rely on any

"presumptions," and it expressly instructed the jurors they were "never required

or compelled to draw any inference." See Humphreys, 54 N.J. at 415 (quoting

DiRienzo, 53 N.J. at 376). Also, in its instructions on the elements of unlawful

possession of a handgun, the court repeated on four separate occasions th at the

State must prove each element of the crime beyond a reasonable doubt. We may

properly assume the jury followed the instructions, see State v. Ross, 229 N.J.

389, 415 (2017), which properly explained the manner in which an inference

may be drawn and required that a conviction rest solely on proof of each element

of possession beyond a reasonable doubt. We therefore find no error in the

court's use of the model jury charge based on the record presented.

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 IV.

Defendant also argues he was deprived of his due process rights because

the court placed undue pressure on the jurors to reach a unanimous decision by

requiring Juror Number Two to deliberate after she indicated jury service

prevented her from earning the income required to support her family a nd by

advising the jury it had an obligation to reach a unanimous verdict after it

reported it was deadlocked. Defendant contends the court's interaction with

Juror Number Two, followed by its instruction to the jury, was unduly coercive

and warrants a new trial.

A.

A trial court's decision to remove a juror rests within its discretion. See

State v. Williams, 171 N.J. 151, 162 (2002) (quoting R. 1:8-2(d)). "[J]udicial

discretion means legal discretion in the exercise of which the court must take

account of the law applicable to the particular circumstances of the case and be

governed accordingly. Implicit is conscientious judgment directed by law and

reason and looking to a just result." State v. Madan, 366 N.J. Super. 98, 110

(App. Div. 2004) (quoting Wasserstein v. Swern & Co., 84 N.J. Super. 1, 6 (App.

Div. 1964)). A court abuses its discretion when its "decision is 'made without a

rational explanation, inexplicably depart[s] from established policies, or rest[s]

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28
on an impermissible basis.'" State v. R.Y., 242 N.J. 48, 65 (2020) (quoting Flagg

v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002)).

"Rule 1:8-2(d)(1) governs the removal and substitution of jurors in civil

and criminal trials, both before and after the commencement of deliberations."

State v. Jenkins, 182 N.J. 112, 123 (2004). Once deliberations have begun, a

deliberating juror may be replaced with an alternate juror only in limited

circumstances, including death, illness, or "other inability to continue." Id. at

123-24 (quoting R. 1:8-2(d)(1)). "Although the 'death' and 'illness' standards

are narrow, the 'inability-to-continue' standard has been acknowledged to be

somewhat vague and broad; accordingly, the Court has construed and applied it

narrowly." Williams, 171 N.J. at 163.

Our Supreme Court recognizes financial hardship may meet Rule 1:8-

2(d)'s inability-to-continue standard. Id. at 167. Courts must be careful,

however, in determining whether removal of a juror is appropriate. Before

dismissing a juror due to financial hardship, the "trial court should determine

that the financial hardship is sufficiently significant to justify excusing the juror

during deliberations, and would be likely to prevent the juror from concentrating

on and participating fully in the deliberations of the jury." Id. at 168.

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 The court must also ensure a juror's removal does not stem from the

deliberative process. Jenkins, 182 N.J. at 124-25. "A deliberating juror may not

be discharged and replaced with an alternate unless the record 'adequately

establishes that the juror suffers from an inability to function that is personal

and unrelated to the juror's interaction with the other jury members.'" State v.

Musa, 222 N.J. 554, 566 (2015) (quoting Jenkins, 182 N.J. at 124-25).

During deliberations, Juror Number Two asked to be excused because she

would "not be able to feed [her] family" if she missed more days of work, and it

was "causing [her] anxiety needing to take medication." The court then

addressed the request with Juror Number Two:

The Court: So I got your note. So what's going
on? When we questioned Number Two when I read
those questions off whether there's going to be a
significant financial problem, I usually excuse jurors
when they tell me, I'm not going to be able to feed my
family.

...

[Juror Number Two]: I didn't say that because
I've never had to deal with this so thinking it would be
okay is different than actually experiencing it. . . . So
now that I'm experiencing the reality that I'm not going
to be getting a paycheck, it's starting to sink that this
is—I'm not going to be able to (inaudible).

The Court: Okay. What are your normal hours
and who do you work for?

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 [Juror Number Two]: I work for Robin's Nest.
I'm a registered nurse. I do home visits Monday
through Friday, 8:00 to 4:00.

The Court: Okay.

[Juror Number Two]: And I'm the breadwinner in
my family. I have three kids. I have a house and bills,
so—

The Court: Do you have other people that are
coming in? Because you're here already you've missed
your appointments today. Somebody had to make
arrangements for you today?

[Juror Number Two]: No. . . . It doesn't work
like that. I schedule my own visits, so like yesterday
you sent us home, I was able to go on a couple visits.
So fortunately I did get a few hours in yesterday.

The Court: Okay. And see because I don't know
how long deliberations are going to last. I don't ask
those questions. I'm not involved in that at all. So you
would be able to make arrangements to do something
like after hours then if you want to make appointments
that way through the home health stuff?

[Juror Number Two]: If my clients can—

The Court: Can accommodate that?

[Juror Number Two]: —do that. Most of these
moms don't want to be seen at night because their
babies—

...

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 The Court: Okay. So you're here already for the
day. . . . I need to make sure that your reason for
wanting to leave or to try and be excused at this point
after the trial is already in deliberations, I want to make
sure it has nothing to do with what's going on in that
deliberation room.

[Juror Number Two]: No, it's—

The Court: It is not. Okay. You don't have to tell
me anything else.

[Juror Number Two]: It's strictly about income.

The Court: Income. Okay. All right. So here's
what I'm going to do. I'm going to have you, because
you're here already today and I apologize for
that. . . . We don't want anybody to be punished as a
result of having to do an obligation, but right now I
can't—you saw what happened yesterday. I had one
alternate and she had to skedaddle because she was ill
so I had to put it off.
So I'm going to leave you in place today for
deliberation purposes. We'll see how things go
throughout the course of the day . . . . but since you're
here already I'm going to ask you to continue with the
deliberations with the rest of the jury. Okay.
Guys, you have any questions for Juror Number
Two? No?

[Defense Counsel]: I have nothing.

Under these circumstances, we find no abuse of discretion in the court's

decision to permit Juror Number Two to continue deliberating for the day. The

juror stated her request to be excused was unrelated to the deliberations, and the

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32
juror was available to continue deliberations that day. Neither Juror Number

Two nor defense counsel objected. We find no evidence the court's handling of

the request was coercive in any manner. To the contrary, the court explained it

would revisit the issue at the end of the day if necessary. Thus, Juror Number

Two understood that if the jury did not reach a verdict by the end of the day, her

request to be excused would be reconsidered by the court. The court's decision

not to excuse Juror Number Two does not warrant a new trial.

B.

Defendant also argues the court erred by instructing the jury it was

obligated to reach a unanimous verdict after it reported it was deadlocked. When

a jury declares it is unable to reach a unanimous verdict, "the decision whether

to grant a mistrial turns on whether the duration of the deliberations balanced

against the length of the trial and the complexity of the proofs shows the jury

has made a good-faith effort to reach a sustainable verdict." State v. Gleaton,

446 N.J. Super. 478, 514 (App. Div. 2016) (quoting State v. Dorsainvil, 435 N.J.

Super. 449, 481 (App. Div. 2014)). If, after weighing these factors, a court "is

not satisfied that all possibilities of reaching a verdict have been exhausted," it

"may send a jury back for further deliberations." State v. Harris, 457 N.J. Super.

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34, 50 (App. Div. 2018) (quoting State v. Carswell, 303 N.J. Super. 462, 478

(App. Div. 1997)).

However, when a trial court "instruct[s] a jury that reports being

deadlocked, [it] must be especially vigilant to avoid communicating a results-

oriented message that could be perceived as intolerant of dissent and

antagonistic to the free expression of strongly held beliefs that may not be shared

by a majority of the deliberating jurors." Gleaton, 446 N.J. Super. at 515

(quoting Dorsainvil, 435 N.J. Super. at 481). An instruction that impresses upon

the jury a need to reach a unanimous verdict is considered coercive. See State

v. Figueroa, 190 N.J. 219, 227, 240-43 (2007) (holding a court's supplemental

charge that it would be around all weekend and "as long as it takes [the jury] to

go through this process" was coercive because it implied the jury would have to

reach a unanimous verdict).

Ideally, before a court directs a jury to continue deliberating after

deadlock claims, it should provide the jury with a Czachor4 charge. See State v.

Ross, 218 N.J. 130, 143-45 (2014); State v. Johnson, 436 N.J. Super. 406, 423

(App. Div. 2014). The charge instructs each juror to "deliberate with a view to

reaching an agreement," and to "decide the case for [him or herself] . . . after an

4
State v. Czachor, 82 N.J. 392 (1980).
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34
impartial consideration of the evidence with [his or her] fellow jurors." Model

Jury Charges (Criminal), "Judge's Instructions on Further Jury Deliberations"

(approved Jan. 14, 2013). The instruction further explains jurors should "not

hesitate to re-examine [their] own views and change [their] opinion if convinced

it is erroneous," but cautions that jurors should "not surrender [their] honest

conviction[s] as to the weight or effect of evidence solely because of the opinion

of [their] fellow jurors, or for the mere purpose of returning a verdict." Ibid.

The number of times a court may instruct a jury using the Czachor charge is

within the court's sound discretion. See Figueroa, 190 N.J. at 235; State v.

Czachor, 82 N.J. 392, 406-07 (1980).

Here, the jury reported it was deadlocked after deliberating approximately

two hours and ten minutes. Instead of reading the jury the Czachor charge, the

court told the jurors, "You have an obligation to deliberate and to reach a

unanimous verdict. That's your obligation. I'm going to send you back in. I'm

going to ask you to continue your deliberations." Defense counsel objected to

the court ordering continued deliberations. Thirty-seven minutes after the court

instructed the jurors they had an "obligation to deliberate and to reach a

unanimous verdict," the jury returned a verdict.

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 The court did not abuse its discretion by sending the jury back to

deliberate, but it erred by instructing the jury it was obligated to reach a

unanimous verdict. The instruction was improperly coercive, see Figueroa, 190

N.J. at 240-43, and wholly inaccurate. A jury has no obligation to reach a

unanimous verdict, and no individual juror has an obligation to reach a verdict

agreeable to his or her fellow jurors.

The State argues language consistent with the Czachor charge was

included in the court's initial charge to the jury and that we may presume the

jury understood and faithfully complied with the trial court's initial instructions.

That argument is unavailing, however, because we may also presume the jury

honored the court's unequivocal direction, provided in response to the jury's

report of a deadlock, that it was obligated to reach a unanimous verdict. See

State v. Miller, 205 N.J. 109, 126 (2011); see also Figueroa, 190 N.J. at 241

(rejecting the State's argument the trial court's proper instruction of the Czachor

charge a day earlier sufficiently counteracted the coercive nature of the court's

instructions to the jury when it reported it was deadlocked).

We are convinced the court's erroneous instruction was clearly capable of

producing an unjust result. The instruction imposed an obligation on the jury

that is inconsistent with each juror's duty not to render judgment on the evidence

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and defendant's guilt "for the mere purpose of returning a verdict." The

instruction was improper and coercive. It alone requires reversal of defendant's

convictions.

V.

Because we reverse and remand for a new trial, it is not necessary to

address defendant's claim the court erred by imposing consecutive sentences on

defendant's convictions for unlawful possession of a handgun, N.J.S.A. 2C:39-

5(b)(1), and certain persons not to possess weapons, N.J.S.A. 2C:39-7(b)(1),

without making findings as to each of the factors pertinent to imposition of

consecutive sentences established in State v. Yarbough, 100 N.J. 627, 643-44

(1985). We note only that if defendant is convicted of multiple offenses

following his retrial, imposition of consecutive sentences must be based on an

analysis of each of the Yarbough factors and must be supported by findings of

fact and conclusions of law in accordance the Yarbough standard. Cf. State v.

Cuff, 239 N.J. 321, 350-52 (2019) (reversing the imposition of a consecutive

sentence because the court failed to make findings supporting the sentence under

Yarbough).

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

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