Opinion
DOCKET NO. A-2407-08T3
10-31-2011
STATE OF NEW JERSEY, Plaintiff-Respondent, v. MICHAEL BONILLA, Defendant-Appellant.
Jacqueline E. Turner, Assistant Deputy Public Defender, argued the cause for appellant (Yvonne Smith Segars, Public Defender, attorney; Ms. Turner, of counsel and on the brief). Steven J. Harbace, Assistant Prosecutor, argued the cause for respondent (Edward J. De Fazio, Hudson County Prosecutor, attorney; Mr. Harbace, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes, Gilroy and Nugent.
On appeal from the Superior Court of New
Jersey, Law Division, Hudson County,
Indictment No. 07-06-0963.
Jacqueline E. Turner, Assistant Deputy
Public Defender, argued the cause for
appellant (Yvonne Smith Segars, Public
Defender, attorney; Ms. Turner, of counsel
and on the brief).
Steven J. Harbace, Assistant Prosecutor,
argued the cause for respondent (Edward J.
De Fazio, Hudson County Prosecutor,
attorney; Mr. Harbace, on the brief).
PER CURIAM
On June 12, 2008, a Hudson County grand jury charged defendant Michael Bonilla with second degree conspiracy to commit armed robbery, N.J.S.A. 2C:15-1 and N.J.S.A. 2C:5-2 (count one); first degree murder, N.J.S.A. 2C:11-3a(1) or 2C:11-3a(2) (count two); first degree felony murder, N.J.S.A. 2C:11-3a(3) (count three); first degree robbery, N.J.S.A. 2C:15-1 (count four); third degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (count five); third degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (count six); third degree conspiracy to distribute a controlled dangerous substance (CDS), marijuana, N.J.S.A. 2C:35-5a(1), N.J.S.A. 2C:35-5b(11), and N.J.S.A. 2C:5-2 (count seven); third degree tampering with a witness, N.J.S.A. 2C:28-5a (count eight); third degree hindering apprehension, N.J.S.A. 2C:29-3b(4) (count nine); and third degree certain persons not to have weapons, N.J.S.A. 2C:39-7b (count ten). In the same indictment, the grand jury also charged co-defendant Roberto Figueroa with counts one through seven.
Count ten was to be tried separately. The appellate record does not disclose the disposition of count ten.
At the April 2008 trial, the jury acquitted defendant of count five, convicted him of the lesser-included offense of reckless manslaughter on count two, and convicted him on all other counts. On June 12, 2008, the court sentenced defendant to a forty-five-year term of imprisonment on the felony murder conviction with an 85% period of parole ineligibility and a five-year period of parole supervision upon release under the No Early Release Act, N.J.S.A. 2C:43-7.2; and to concurrent four-year terms of imprisonment on the convictions for conspiracy to distribute a CDS, tampering with a witness, and hindering apprehension. The court merged the convictions on the remaining counts with the conviction on count three, felony murder, and imposed appropriate fines and penalties.
Defendant asserts the following trial and sentencing errors for our consideration on appeal:
POINT I
THE TRIAL JUDGE ERRED IN ADMITTING INTO EVIDENCE PORTIONS OF THE CO-DEFENDANT'S OUT-OF-COURT STATEMENT TO THE POLICE, VIOLATING DEFENDANT'S RIGHTS UNDER THE UNITED STATES AND NEW JERSEY CONSTITUTIONS. (U.S. CONST. AMENDS. VI AND XIV; N.J. CONST., ART. I. PAR. 10).
POINT II
AS WAS THE BASIS FOR REVERSAL IN STATE V. GONZALEZ, THE TRIAL JUDGE CHARGED THE JURY ON ATTEMPTED THEFT AS A BASIS FOR ROBBERY, BUT DID NOT EVER DEFINE EITHER THE ACTUS REUS OR THE MENS REA ELEMENTS OF A CRIMINAL ATTEMPT. (Not Raised Below).
POINT III
THE JUDGE'S INSTRUCTIONS AFTER THE REPLACEMENT OF A JUROR, DURING DELIBERATIONS, WERE MISLEADING AND NOT IN CONFORMANCE WITH CASELAW. (Not Raised Below).
POINT IV
THE DEFENDANT'S SENTENCE IS EXCESSIVE
We find merit in defendant's second point and therefore reverse his conviction for felony murder and robbery. We affirm all other convictions.
I.
The State's trial evidence included testimonial evidence from the police investigators and defendant's acquaintances, and circumstantial evidence of cell phone calls made or received by defendant. According to the State's evidence, on February 14, 2007, at 12:37 a.m., Jersey City Police Detective Scott Rogers received radio transmissions of "shots fired" and "a man down" in the vicinity of Waverly and Baldwin Streets. Responding to the scene, Rogers saw a male, later identified as the victim, Ariel Cruz, lying facedown with his upper body on the pavement and his lower body on the blacktop portion of Waverly Street. Cruz was unconscious and mortally wounded from a single gunshot to the left hip.
When emergency medical technicians attempted to move Cruz onto a gurney, a Ziploc freezer bag containing six smaller plastic bags of marijuana fell from beneath his jacket. Cruz was transported to the hospital where he died without regaining consciousness. Rogers remained behind to supervise a search of the area for evidence. During the search, the police recovered a nine-millimeter shell casing and found two cell phones near Cruz's body, both of which belonged to him.
The police also canvassed the neighborhood and found two witnesses who had heard a gunshot and had seen individuals leaving the scene, but could not identify them. One of the witnesses testified at trial that after hearing a gunshot she looked through her window and saw two men, one with a gun in his hand, running on Waverly Street. After losing sight of the men she looked in the opposite direction and saw another man holding his left side and limping across the street toward a red apartment building. She described the two fleeing men as being approximately the same height. Subsequent testimony disclosed that Roberto Figueroa was approximately six feet tall, much taller than defendant.
Because co-defendant Roberto Figueroa, and Noel Figueroa, a witness, have the same surname, we will refer to them by their full names.
Detective Sean O'Leary of the Hudson County Prosecutor's Office directed the homicide investigation. The investigators learned from Cruz's cell phone data that defendant had called Cruz shortly before the shooting. The detectives contacted defendant's mother, and she and defendant went to the homicide division at approximately five o'clock that afternoon. Defendant told detectives he was supposed to meet Cruz at approximately 10:30 the previous night to purchase $250 worth of marijuana, but Cruz never appeared, so he returned home.
O'Leary obtained defendant's cell phone records and identified calls and direct "chirps" between defendant and Cruz from 12:30 to 12:35 a.m. on February 14, 2007; and calls between defendant's cell phone and a cell phone belonging to Efrain Medero at 12:39 and 12:43 a.m. Investigators also obtained surveillance video of Medero driving past a Dunkin' Donuts store near the scene at 12:43:38 a.m.
Although not defined in the record, we infer that "chirp" refers to a two-way communication feature available on some cellular phones.
Megan Gangadeen, defendant's girlfriend, lived with defendant, Roberto Figueroa, and Roberto Figueroa's girlfriend, Tosha Rivera. Gangadeen had once seen defendant with what she believed was a nine-millimeter handgun that he kept in the bedroom, though she did not see it on the day of the shooting. On the night before the shooting, Gangadeen overheard defendant and his friend, Noel Figueroa, planning to rob a marijuana dealer named Ariel. She later heard defendant and Roberto Figueroa discuss the robbery and say that a man named Efrain was going to drive the car. Defendant was going to call a marijuana dealer and Roberto Figueroa was going to "come out of nowhere" and "rob him." According to Gangadeen, defendant intended to sell the marijuana to pay off a lawyer.
Later that night, defendant and Roberto Figueroa left the apartment to meet the driver. When they returned about an hour later, defendant was crying and angry and said Roberto Figueroa "shot him" in the buttocks. The next day defendant's mother called and told Gangadeen that the victim of the shooting had died, and that detectives were looking for defendant. Defendant told Gangadeen either not to say anything to the police, or to tell them he was at home playing X-Box.
Efrain Medero, who had known defendant for approximately two years, drove him and Roberto Figueroa to and from the robbery scene. Medero testified that defendant phoned him around 9:00 p.m. on the night before the shooting and asked for a ride "to the Heights." Medero drove to defendant's apartment and when he entered he overheard defendant talking to Noel Figueroa about robbing Cruz. Noel Figueroa backed out of the plan to rob Cruz because Cruz often had a dog, and dogs scared him, but Roberto Figueroa said he would go. Roberto Figueroa and defendant left the room and returned with hooded sweatshirts, and then the three drove to defendant's old apartment. On the way, defendant was "chirping" Cruz on a chirp phone. Medero saw a nine-millimeter handgun in the pocket of Roberto Figueroa's sweatshirt.
When the three arrived near the scene of the robbery, defendant and Roberto Figueroa left the car. Shortly after they exited the car defendant phoned Medero twice to let him know Cruz was on the way. After approximately ten minutes they returned, running, exhausted, and nervous. Defendant was upset and said that "[Roberto Figueroa] shot him." Medero drove them back to defendant's apartment, and as defendant exited the car he told Medero to keep his mouth shut. Two days later, defendant told Medero the police had come to his house. Defendant told Medero not to say anything to the police about the shooting. Medero was subsequently arrested, pled guilty to armed robbery, and agreed to testify against defendant and Roberto Figueroa.
The State also called Noel Figueroa as a witness. He denied knowing anything about the robbery or planning it, and recanted a prior statement he had given to the police implicating defendant in the robbery. He said he only gave the statement because when the police picked him up he was in possession of cocaine and they told him he would not be arrested if he cooperated. After conducting a hearing outside of the jury's presence, the trial judge ruled that the State could impeach Noel Figueroa with his statement. The State impeached him by calling as a witness the detective who took his statement, in which Noel Figueroa admitted that defendant phoned him to participate in a robbery.
Defendant testified and denied any involvement in the robbery and shooting. On February 13, 2007, defendant called Cruz to arrange to buy marijuana and they agreed to meet at 10:30 that night at Baldwin and Newark Avenue in front of a McDonald's restaurant. Defendant appeared and waited twenty minutes, but Cruz did not show, so defendant returned home. When he arrived home, seven people were there, including Gangadeen, Noel Figueroa, and Roberto Figueroa.
Defendant contacted Cruz by phone at approximately 11:00 p.m. and Cruz said he had given defendant "the run around" because he had to see someone else. Cruz said he would send Medero with the marijuana. Defendant phoned Medero who said, "I'll call you right back" and then hung up. Defendant called Medero again a few minutes later, but hung up because of Medero's attitude.
When defendant testified about the sequence of phone calls from his cell phone to those of Roberto Figueroa, Cruz, and Medero, he said that certain phone calls between his phone and Roberto Figueroa's phone were actually made by their girlfriends, Gangadeen and Rivera. He explained that Roberto Figueroa had his own chirp phone.
Finally, defendant explained a videotaped statement the prosecutor had played to the jury in which defendant said he wanted to make a deal. Defendant had been in a holding cell for four or five hours, and the detectives wanted him to implicate Medero. The detectives said if defendant implicated Medero they would release him, so he agreed. Defendant denied asking anyone to lie to the police for him or ever owning a nine-millimeter handgun.
To refute defendant's testimony that Gangadeen and Rivera were talking on defendant and Roberto Figueroa's cell phones, the State called Detective Robert Bava of the Hudson County Prosecutor's Office, who tape recorded a statement given by Roberto Figueroa on February 21, 2007. Roberto Figueroa was a suspect when Bava took the statement. Bava initially elicited, among other things, Roberto Figueroa's phone number. Roberto Figueroa said the number was his girlfriend's cell phone and it was the only phone that he and his girlfriend had.
II.
We first address defendant's Point II that the trial court erred by not charging the jury on the law of attempt. We recognize that "[a]n essential ingredient of a fair trial is that a jury receive adequate and understandable instructions. Correct jury instructions are 'at the heart of the proper execution of the jury function in a criminal trial.'" State v. Afanador, 151 N.J. 41, 54 (1997) (quoting State v. Alexander, 136 N.J. 563, 571 (1994) (citation omitted)).
In assessing the propriety of a jury charge, an appellate court should examine the entire charge to see whether it was ambiguous or whether it misinformed the jury of the law. State v. R.B., 183 N.J. 308, 324 (2005); State v. Hipplewith, 33 N.J. 300, 317 (1960). If, upon reviewing the charge as a whole, the reviewing court finds that prejudicial error did not occur, then the jury's verdict must stand. State v. Coruzzi, 189 N.J. Super. 273, 312 (App. Div.), certif. denied, 94 N.J. 531 (1983).
Defendant did not request a charge on attempt and did not object when the court charged the jury. Consequently, defendant must demonstrate plain error, that is, error "clearly capable of producing an unjust result." R. 2:10-2; see also State v. Walker, 203 N.J. 73, 89-90 (2010).
The trial court recognized, and the State confirmed there was no evidence of a theft of marijuana or anything else from the victim. Accordingly, the court explained to the jury:
The State does not contend that the defendant himself killed Ariel Cruz. The State charges that Ariel Cruz was shot and killed while defendant, alone or with one or
more other persons, was engaged in the commission of or attempt . . . to commit or flight after committing, or attempting to commit the crime of robbery as charged in Count Four of the indictment. Whenever I refer to robbery again as part of the charge, I'll try and skip commission and deal with attempt, but if I forget or misspeak and say commission, I will also say attempt and realize that we're talking about an attempt.
The court instructed the jury that it could not find defendant guilty of felony murder unless it first found him guilty beyond a reasonable doubt of having attempted to commit robbery. Under those circumstances, the court was required to instruct the jury on the law of attempt as an element of robbery. State v. Gonzalez, 318 N.J. Super. 527, 532-37 (App. Div.), certif. denied, 161 N.J. 148 (1999), abrogated on other grounds by State v. Hill, 199 N.J. 545, 565-66 (2009); cf. State v. Belliard, 415 N.J. Super. 51 (App. Div. 2010), certif. denied, 205 N.J. 81 (2011). The court did not instruct the jury on the elements of attempt.
The court instructed the jury on robbery, in relevant part, as follows:
The pertinent part of the statute on which this indictment is based reads as follows[:] a person is guilty of robbery if, in the course of committing a theft, he knowingly inflicts bodily injury or uses force upon another. In order for you to find the defendant guilty of robbery, the State is required to prove each of theThe criminal attempt statute provides in pertinent part:
following elements beyond a reasonable doubt.
One, that the defendant was in the course of committing a theft; and two, that while in the course of committing that theft, the defendant knowingly inflicted bodily injury or used force upon another.
As I have said, the State must prove beyond a reasonable doubt that the defendant was in the course of committing a theft. In this connection, you were advised that an act is considered to be in the course of committing the theft if it occurs in an attempt to commit the theft during the commission of the theft itself or an immediate[] flight after the attempt or commission. Theft is defined as the unlawful taking or exercise of unlawful control over the property of another, with purpose to deprive him thereof. I have used the . . . phrase "with purpose" and I have previously defined purposely for you. With purpose, . . . with design are equivalent terms that have the same meaning. Purpose is a state of mind and I've previously defined state of mind for you.
In addition to proving beyond a reasonable doubt the defendant was in the course of committing a theft, the State must prove beyond a reasonable doubt that while in the course of committing a theft, the defendant knowingly inflicted a bodily injury or used force upon another.
a. Definition of attempt. A person is guilty of an attempt to commit a crime if, acting with the kind of culpability otherwise required for commission of the crime, he:The crime of robbery includes attempted theft. A person commits robbery if "in the course of committing a theft" the person inflicts bodily injury or uses force upon another, threatens another with or purposely puts the other in fear of immediate bodily injury, or commits or threatens immediately to commit a crime of the first or second degree. N.J.S.A. 2C:15-1a(1)-(3). An act is "deemed . . . included . . . 'in the course of committing a theft' if it occurs in an attempt to commit theft or in immediate flight after the attempt or commission." N.J.S.A. 2C:15-1a. Robbery is a predicate offense for felony murder; theft is not. N.J.S.A. 2C:11-3(a)(3). Consequently, "failure to charge the concept of attempt in the predicate offense of robbery, and its specific component, 'substantial step,' N.J.S.A. 2C:5-1b, constitutes plain error." Gonzalez, supra, 318 N.J. Super. at 536; see also State v. Federico, 103 N.J. 169, 176 (1986) (explaining "that the failure to charge the jury on an element of an offense is presumed to be prejudicial error, even in the absence of a request by defense counsel").
(1) Purposely engages in conduct which would constitute the crime if the attendant circumstances were as a reasonable person would believe them to be;
(2) When causing a particular result is an element of the crime, does or omits to do anything with the purpose of causing such result without further conduct on his part; or
(3) Purposely does or omits to do anything which, under the circumstances as a reasonable person would believe them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.
b. . . . Conduct shall not be held to constitute a substantial step under subsection a.(3) of this section unless it is strongly corroborative of the actor's criminal purpose.
[N.J.S.A. 2C:5-1a-b.]
The facts in Gonzalez are similar to the facts here. In Gonzalez, a witness testified that the defendant informed him that he intended to rob an "older guy" of his money, rings, and watch. Supra, at 318 N.J. Super. 531. There was conflicting witness testimony about whether Gonzalez had a gun when he entered an apartment building with the victim. Id. at 530-31. The defendant gave an inculpatory statement to police which he recanted at trial. Id. at 531-532. Despite "the compelling evidence presented by the State as to [the] defendant's involvement in this criminal episode, the State was unable to offer any evidence that the victim . . . was actually robbed." Id. at 532-533. There, as here, the State was obligated to prove beyond a reasonable doubt that the defendant "had attempted to commit robbery and in the course thereof the victim was shot and died." Id. at 533. We held in Gonzalez that the failure to charge attempt in the context of robbery as a predicate offense for felony murder constituted plain error. Id. at 536.
The State argues that the court adequately charged the jury because it defined purposeful conduct in the portion of its charge on robbery. Although the court charged that the act of theft required a purpose to deprive a person of property, the court did not define the elements of attempt, including "substantial step."
The State also argues that in view of the overwhelming evidence against defendant, the failure to charge attempt was not plain error. We rejected a similar argument in Gonzalez. "Erroneous instructions are poor candidates for rehabilitation as harmless, and are ordinarily presumed to be reversible error." Afanador, supra, 151 N.J. at 54. Accordingly, we reverse the convictions on counts three and four on felony murder and first degree robbery, respectively.
We do not reverse count six, possession of a firearm for an unlawful purpose. See State v. Banko, 182 N.J. 44, 46 (2004) (holding that a jury may render inconsistent verdicts so long as there exists a sufficient evidential basis in the record to support the charge on which defendant is convicted).
With respect to Point I, defendant argues that Bava's hearsay rebuttal testimony violated his right to confrontation. Defendant had testified that he did not make or receive the phone calls between his cell phone and Roberto Figueroa's cell phone, as evidenced by the cell phone records. Instead, their girlfriends made the calls. According to defendant, he and Roberto Figueroa had their own "chirp" phones and did not need to use the other phones.
In rebuttal, Bava testified that he videotaped a statement from Roberto Figueroa, who was a suspect at the time. Roberto Figueroa provided the cell phone number at issue. Bava then answered "[y]es" to the prosecutor's question, "[a]nd at the end [Roberto Figueroa] says it's -- that's actually my girlfriend's cell phone, that's the only one we have, right?" The prosecutor used the rebuttal testimony in his summation to attack defendant's credibility.
The trial court admitted the testimony under N.J.R.E. 803(c)(6), which provides an exception to the hearsay rule for records of regularly conducted activity. One of the foundational elements for admitting such a record is that it must be trustworthy. Defendant maintains that the statement was untrustworthy and that it violated his right to confrontation.
The State relies on State v. Mallozzi, 246 N.J. Super. 509, 515 (App. Div.), certif. denied, 126 N.J. 331 (1991), for the proposition that booking procedures and the routine questions associated therewith are ministerial in nature, and thus not interrogation. Mallozzi is distinguishable from this case. We stated in Mallozzi, "booking procedures and the routine questions associated therewith are ministerial in nature and beyond the right to remain silent." Ibid. Thus, the issue in Mallozzi was whether booking procedures constituted custodial interrogation requiring the police to advise the defendant of his Miranda rights. Here, the issue is whether a non-testifying co-defendant's out-of-court statement can be admitted to impeach the testimony of defendant.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
The trial court and the parties recognized that the statement was hearsay. The trial court erred in admitting the statement under N.J.R.E. 803(c)(6). The statement was not simply a phone number, but was a declaration by Roberto Figueroa that he did not have another cell phone. N.J.R.E. 803(c)(6) is "not [a] vehicle[] by which substantive evidential status may be conferred upon the otherwise hearsay declarations . . . of a witness to a crime . . . ." State v. Lunsford, 167 N.J. Super. 296, 309 (App. Div. 1979).
Although we conclude that the hearsay statement was improperly admitted, its admission was harmless error. Appellate Courts will disregard "[a]ny error or omission [by the trial court] . . . unless it is of such a nature as to have been clearly capable of producing an unjust result." State v. Castagna, 177 N.J. 293, 312 (2006) (quoting Rule 2:10-2). That "standard applies whether the error was objected to below or whether the error was first claimed upon appeal." Ibid. (quoting State v. Macon, 57 N.J. 325, 337-338 (1971)).
Defendant identified the cell phone number at issue as belonging to Roberto Figueroa's girlfriend, Rivera. Defendant initially testified that he used his phone to make one of the calls to Rivera. Defendant subsequently testified that his girlfriend, Gangadeen, made the calls to Rivera. Additionally, defendant admitted making a call from his phone to Cruz one minute after one of the alleged calls between his and Roberto Figueroa's girlfriends.
Moreover, the evidence against defendant, separate and apart from the cell phone numbers, was substantial. He was overheard planning the robbery by several witnesses, and after the shooting he admitted to two different witnesses, one of whom drove him to the crime scene, that Roberto Figueroa "shot him." Based on that evidence, we conclude that the error was harmless beyond a reasonable doubt. Castagna, supra, 187 N.J. at 293.
We turn next to Point III in which defendant claims the trial court failed to properly instruct the jury after an original juror was replaced with an alternate. During the second day of deliberations, after the jury had asked and the court had answered seven written questions relating to the jury charge, a juror made disclosures which required his dismissal from the jury. After the original juror was replaced with an alternate, the judge instructed the jury as follows:
Ladies and gentlemen, as you know, Juror No. 12 has been excused from the jury. An alternate juror has been selected to take his place. Because of this change in your jury, you must set aside and disregard all of your past deliberations and begin your deliberations again, just as if you were now entering the jury room for the first time and directly after listening to my charge. In beginning your deliberations again, you must eliminate any impact that Juror No. 12 may have had on your deliberations and consider the evidence in the context of full and complete deliberations with the new member of your jury.
Now since I answered several of your questions in writing as opposed to on the record I am going to now re-read those for the benefit of Juror No. 14 who has now joined us in the jury box. I think that she was in the courtroom on a couple of occasions when I was putting on the record the answer and - - the question and the answer before I sent it in but just out of caution, I will again read the answers anyway.
* * *
C-1 was the first question, "How far from the victim was the assailant when the short was fired?" and the answer was that there was no testimony with regard to that issue.
C-7 - - C-2 rather, I believe I read that one to you in the jury room in the presence of Juror No. 14. No, no, I didn't, I sent it in. Okay. And the answer is - - the answer to your question is, distribute means to transfer actual constructive or attempted from one person to another of a controlled dangerous substance. It is not necessary that the drugs be transferred in exchange for payment, for promise of payment of money or anything of value. Remember, the defendant is not charged with distribution, only with conspiracy to distribute.
C-3 - - C-3 I answered in open court in the presence of the alternate, so we need not go over C-3. Actually I marked it C-3A for some reason.
C-4 that was answered in court. We re-charged you on Counts Five and Six in the presence of the alternate.
C-5 again was answered in open court when you originally requested transcripts, and I sent you back in, then you came out with C-6, which requested the readback, and we read them back. Again, all that was in the presence of the alternate.
Then there was the final question, or the most recent question that has been sent
out, C-8, which I did answer in writing. The question was - - was this a question of the whole jury or from Juror No. 12, I just wonder, does anybody remember? Never mind.
MR. PATEL [defende counsel]: It was not Juror No. 12 I don't believe.
THE COURT: Okay. C-8, "For a charge where the State has to prove three things, if we believe the State proved two, but did not prove all three, must we say not guilty?" And the answer is, yes.
Okay. You may return to the jury room and begin your deliberations anew.
Although the court apparently believed the alternate juror was not present when question C-1 was read, the court was incorrect. The trial transcript reflects the prosecutor explicitly confirmed that the alternate was present when the court read on the record its written answer to C-1.
--------
During the trial defendant did not object to the alternate juror being present when the court read the jury questions and answered them. Defendant did not object to the court's instructions to the jury after the disqualified juror was replaced by the alternate. Consequently, we evaluate defendant's argument, now raised for the first time, under the plain error standard. R. 2:10-2.
If a juror is discharged by the court at any time after submission of the case to the jury, an alternate juror may take the place of the juror who was discharged. R. 1:8-2(d)(1). "When such a substitution of an alternate juror is made, the court shall instruct the jury to recommence deliberations and shall give the jury such other supplemental instructions as may be appropriate." Ibid. The court must also instruct the jury in clear and unequivocal terms that it must begin its deliberations anew and in effect, start over. State v. Trent, 79 N.J. 251, 255 (1979); State v. Anderson, 173 N.J. Super. 75, 86 (App. Div.) (applying Trent retroactively), certif. denied, 85 N.J. 124 (1980).
Although defendant concedes that "the substitution itself . . . appears to be proper," he argues that by reading three questions posed by the original jury and then answering them, the court undermined its "deliberate anew" instruction. We disagree.
"In light of the centrality of jury deliberations to our criminal justice system, errors that could upset or alter the sensitive process of jury deliberations, such as improper juror substitution, . . . are 'cognizable on appeal as plain error . . . .'" State v. Corsaro, 107 N.J. 339, 347 (1987) (quoting State v. Harper, 128 N.J. Super. 270, 278 (App. Div.), certif. denied, 65 N.J. 574 (1974)). Examples of improper juror substitution include a court's failure to instruct the reconstituted jury to begin its deliberations anew, Trent, supra, 79 N.J. at 255; substituting a juror after the original jury has rendered a partial verdict, Corsaro, supra, 107 N.J. at 353; and improperly excusing a juror when there are insufficient grounds. State v. Valenzuela, 136 N.J. 458, 473 (1994).
Here, the trial court responded to the first question about the distance between the victim and assailant when the victim was shot, by answering there was no testimony with regard to that issue. As we previously indicated, the substitute juror had heard that answer when the question was initially asked. The other two questions resulted in the judge defining "distribute" and, in essence, explaining that if the jury had a reasonable doubt on any element of an offense they must render a not guilty verdict. Under those limited circumstances, where the court merely reiterated concepts that the substitute juror had previously heard when the court charged the original jury, we do not conclude that the error undermined the court's instruction to the jury to start deliberations anew. Stated differently, the court's re-reading of the three jury questions and answers was not clearly capable of causing an unjust result.
Having said that, the better practice would have been to have the jury and the alternate present in the courtroom when the court answered the jury's questions. Upon reconstitution of the jury, the court should have given its "start anew" instruction without reference to the previous questions, and reminded the jurors that if they had questions for the court they should convey them in writing.
Defendant contends in Point IV that his sentence was excessive. In view of our disposition of defendant's felony murder conviction, we need not address his argument concerning sentencing.
We reverse defendant's felony murder and first degree robbery convictions under counts three and four. We affirm the remaining convictions and remand counts one, two, and six for resentencing. If the State retries defendant on counts three and four, the resentencing should take place after trial.
Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION