Opinion
DOCKET NO. A-0950-11T3
04-03-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ROBERT L. DANIELS, a/k/a ROBERT DANIELS, Defendant-Appellant.
Rochelle Watson, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Watson, of counsel and on the brief). Deborah Bartolomey, Deputy Attorney General, argued the cause for respondent (Jeffrey S. Chiesa, Attorney General, attorney; Ms. Bartolomey, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Amended Opinion
Before Judges Grall, Simonelli and Koblitz.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 10-02-0628.
Rochelle Watson, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Watson, of counsel and on the brief).
Deborah Bartolomey, Deputy Attorney General, argued the cause for respondent (Jeffrey S. Chiesa, Attorney General, attorney; Ms. Bartolomey, of counsel and on the brief). PER CURIAM
Following a jury trial, defendant Robert L. Daniels was convicted of first-degree murder, N.J.S.A. 2C:11-3a(1) or (2); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d; second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b; third-degree endangering an injured victim, N.J.S.A. 2C:12-1.2; and second-degree certain persons not to have a weapon, N.J.S.A. 2C:39-7b. The trial judge sentenced him to an aggregate forty-seven-year term of imprisonment, subject to an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2.
On appeal, defendant raises the following contentions:
POINT IBecause we conclude the trial judge erred in failing to voir dire a deliberating juror regarding possible juror taint, we are constrained to reverse and remand for a new trial.
IT WAS ERROR FOR THE TRIAL COURT TO SUBSTITUTE A JUROR AFTER THE JURY HAD ANNOUNCED THAT IT WAS DEADLOCKED. FURTHERMORE, THE TRIAL COURT ERRED IN FAILING TO VOIR DIRE A JUROR WHO HAD VIOLATED HER OATH AND WAS OVERHEARD DISCUSSING THE DELIBERATION[] PROCESS.POINT II
A. The Substitution Of Juror #5 After The Jury Had Announced That It Was Deadlocked Was Improper Under State v. Banks, 395 N.J. Super. 205 (App. Div.), certif. denied, 192 N.J. 598 (2007).
B. The Trial Court Erred In Failing [T]o Voir Dire A Juror Who Had Violated Her Oath And Was Overheard Discussing [T]he Deliberation[] Process.
DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO IMPEACH, WITH HER PRIOR CRIMINAL CONVICTION, THE SOLE WITNESS TO THE INCIDENT, WHOSE TESTIMONY THE ORIGINAL AND RECONSTITUTED JURY REQUESTED TO REVIEW DURING DELIBERATION[].POINT III
THE CONVICTION FOR POSSESSION OF A HANDGUN MUST BE REVERSED BECAUSE THE JURY WAS ERRONEOUSLY INSTRUCTED ON THE ELEMENTS OF UNLAWFUL POSSESSION OF A WEAPON.
The charges against defendant stemmed from his alleged involvement in the murder of Dwayne McCants inside a restaurant. The shooter's identity was the central issue at trial.
The presentation of evidence occurred on April 5, 6 and 7, 2011. The jury began deliberating on April 12, 2011. On April 13, 2011, the jury announced it had "reviewed all the evidence multiple times" and was at a "standstill." By that time, the jury had deliberated for approximately four hours. The judge instructed the jury to continue deliberating. On the morning of April 14, 2011, the judge replaced a juror who had become ill and could not continue jury service. The reconstructed jury then began deliberating anew.
On the morning of April 15, 2011, the judge received a report that Juror Number 11 allegedly made a statement implying she would render a not guilty verdict. The judge decided to interview all of the jurors in chambers. Juror Number 11 indicated during her interview that she disagreed with her fellow jurors, who were attacking her, but could continue deliberating. Following a lunch recess that day, the prosecutor advised the judge that two of the victim's family members reported they overheard one of the jurors talking on her cell phone in the hallway about jury deliberations. The prosecutor said:
Defendant's appellate counsel misadvised this court that the interviews were not recorded. After we issued our initial opinion in this matter on April 3, 2013, the judge provided a copy of the transcript of the interviews.
It doesn't appear [the juror] was talking about the facts or evidence in any way. But she was talking loudly on the cell phone during the lunch hour, and basically saying to someone that she wasn't going to change her mind. The judge keeps on asking her the same questions. She hoped that after lunch they would dismiss her. She was mentally drained, had knots in her stomach. She wants to go home. And something to the effect she doesn't even know these people. Sounds like she was referring to the other jurors.
Then on the elevator one of the two [family members] was on the elevator, [the juror] was continuing the same conversation, and stated that someone got in her face and told her that she needs to make a decision. It sounded like that referred to something in the deliberation process.
The judge inferred that the prosecutor was referring to Juror Number 11, whom the judge believed was the "hold-out juror." Based on his prior interview of Juror Number 11, the judge declined to question her a second time and permitted her to continue deliberating. The jury resumed deliberating and returned a guilty verdict shortly thereafter.
Defendant contends in Point I that the judge erred in failing to voir dire Juror Number 11 to determine if there was juror taint by an unknown person outside of deliberations. We agree.
The Sixth Amendment to the United States Constitution and Article I, paragraph 10 of the New Jersey Constitution guarantee criminal defendants the right to trial by an impartial jury. State v. R.D., 169 N.J. 551, 557 (2001). Thus, a criminal defendant "is entitled to a jury that is free of outside influences and [that] will decide the case according to the evidence and arguments presented in court in the course of the criminal trial itself." State v. Williams, 93 N.J. 39, 60 (1983). "The securing and preservation of an impartial jury goes to the very essence of a fair trial." Ibid.
"[I]f during the course of the trial it becomes apparent that a juror may have been exposed to extraneous information, the trial court must act swiftly to overcome any potential bias and to expose factors impinging on the juror's impartiality." R.D., supra, 169 N.J. at 557-58; see also State v. Maisonet, 166 N.J. 9, 22-23 (2001) (holding that the court has an "'independent duty to act swiftly and decisively to overcome the potential bias of a jury from outside influences'" (quoting Williams, supra, 93 N.J. at 63)). As we have held,
The thrust of the New Jersey and federal cases on mid-trial allegations of jury misconduct [like juror exposure to outside influences] is that the trial judge must make a probing inquiry into the possible prejudice caused by any jury irregularity, relying on his or her own objective evaluation of the potential for prejudice rather than on the jurors' subjective evaluation of their own impartiality. Although the trial judge has discretion in the way to investigate allegations of jury misconduct, an adequate inquiry on the record is necessary for the purposes of appellate review.
[State v. Scherzer, 301 N.J. Super. 363, 487-88 (App. Div.) (citations omitted), certif. denied, 151 N.J. 466 (1997).]
Where it becomes apparent at trial that a juror may have been exposed to extraneous information or outside influences, the trial "court is obliged to interrogate the juror, in the presence of counsel, to determine if there is a taint; if so, the inquiry must expand to determine whether any other jurors have been tainted thereby." R.D., supra, 169 N.J. at 558. Pressler & Verniero, Current N.J. Court Rules, comment 2.1 on Rule 1:16-1 (2013) (citations omitted) pertinently states that:
[a]lthough the rule is drawn in terms of a post-verdict interrogation of jurors, the technique provided by the rule for determining juror taint is obviously applicable during the course of the trial as well when a circumstance arises suggesting that a juror may in fact be tainted. In that situation the trial court, upon being apprised of such a circumstance, is obliged to interrogate the juror in the presence of counsel to determine if there is a taint. If so, the court is then obliged to interview the other jurors to determine if they or any of them have been infected by the taint. The court is then obliged to determine, assuming a sufficient number of jurors remain, whether the trial may proceed upon excusing the tainted juror or jurors or whether a mistrial must be declared. . . .See State v. Bisaccia, 319 N.J. Super. 1, 13 (App. Div. 1999) ("[W]here, as here, there is the possibility of actual juror taint or exposure to extraneous influences (including jury misconduct and 'comments made to jurors by outside sources'), the judge must voir dire that juror and, in appropriate circumstances, the remaining jurors.")
If the trial court fails to so proceed and the circumstance is indeed one which is apparently tainting, the taint must be presumed and a new trial ordered.
Here, Juror Number 11 was perceived as the "hold-out" juror. She said during the cell phone conversation that "she wasn't going to change her mind." She then participated in the deliberations that led to defendant's convictions. The judge was correct not to inquire about jury deliberations. See State v. Jenkins, 182 N.J. 112, 134-35 (2004) (emphasizing the importance of maintaining the secrecy of jury deliberations). However, contrary to the requirement set out in R.D., as explained in Rule 1:16-1, the judge should have questioned the juror about the cell phone conversation to determine whether, as the prosecutor's report suggested, a stranger to the deliberations pressured her to change her mind about the verdict. For this reason, defendant's conviction is reversed, and the matter is remanded for a new trial.
Having reached this decision, we need not address defendant's remaining contentions.
Reversed and remanded for a new trial.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION