Opinion
DOCKET NO. A-0380-12T2
10-20-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. TIMOTHY BOYD, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Alicia J. Hubbard, Assistant Deputy Public Defender, of counsel and on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Frank J. Ducoat, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Alvarez, Maven, and Carroll. On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 10-06-1557 and 10-06-1558. Joseph E. Krakora, Public Defender, attorney for appellant (Alicia J. Hubbard, Assistant Deputy Public Defender, of counsel and on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Frank J. Ducoat, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief). Appellant filed a pro se supplemental brief. PER CURIAM
Tried by a jury, defendant Timothy Boyd was convicted of second-degree reckless manslaughter, N.J.S.A. 2C:11-4(b)(1), third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b), second-degree possession of a weapon for unlawful purposes, N.J.S.A. 2C:39-4(a), and third-degree hindering prosecution, N.J.S.A. 2C:29-3(b). During the trial which immediately followed, defendant was convicted of second-degree certain persons not to possess weapons, N.J.S.A. 2C:39-7(b).
The trial judge sentenced defendant on July 11, 2012, to ten years imprisonment subject to eighty-five percent parole ineligibility in accord with the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on the reckless manslaughter conviction; ten years concurrent on the possession of a weapon for an unlawful purpose charge; and two five-year concurrent terms on the unlawful possession of a weapon and hindering offenses. The trial judge imposed a consecutive ten-year sentence with five years of parole ineligibility on the certain persons conviction. Thus defendant's aggregate term was twenty years.
On appeal, defendant's points of error in his counseled brief relate to the trial judge's instructions to, and management of, the jury. In his pro se submission, with little explanation or support, defendant asserts the trial judge erred in the manner in which she addressed the initial partial verdict returned by the jury, and also erred by imposing the sentences consecutively. We affirm the convictions but vacate the sentence and remand for the trial judge to provide a more detailed statement of reasons and resentence defendant accordingly.
The State concedes that the judgment of conviction should reflect 943 days of jail credit.
I
The facts and circumstances established during the trial relevant to the issues raised on appeal are as follows. On December 4, 2009, defendant called 9-1-1 to report a dead body lying on a vacant street in Newark. He told the operator that the body appeared to have been there "for a couple of days." Defendant also said the victim had been shot and that there was brain matter on the sidewalk.
Police Officer Michael Turner was the first responder to the scene. When he arrived, he found the victim lying partially in the street. Defendant, who was at the location waiting for police, identified himself to Turner as the 9-1-1 caller, explaining that he found the body by happenstance while walking by. Defendant sat in the back of Turner's marked police vehicle until the detectives came to the scene of the crime.
When Holt Walker, the Essex County Prosecutor's Office Homicide Task Force detective on call that evening, arrived, defendant again identified himself as the 9-1-1 caller. As the investigation progressed over several days, Walker attempted unsuccessfully to contact defendant by phone. On December 11, Walker went to defendant's home, which was located around the corner from the location of the body. Walker drove defendant to the Essex County Prosecutor's Office in order to interview him; at that point, he was the only potential witness known to the authorities.
Walker testified that during the initial interview, defendant claimed that a friend by the name of "K" was the person who first saw the victim. K had been searching the area, attempting to track down his stolen gray Acura, when he found the body. Since defendant lived nearby, K immediately went to his home to report the discovery. Pressed for K's full name, defendant said it was Kareem, but that he was not sure about K's last name. Eventually, he said his last name was Thomas. When shown photographs of men named Kareem Thomas, defendant identified multiple individuals as the friend with whom he had spoken the night he called 9-1-1.
Louis Carrega, then an Essex County Prosecutor's Office homicide lieutenant, also testified that when defendant was initially brought to headquarters, he was presumed to be just a good citizen who had reported a crime. He explained, as did Walker, that none of the conversations with defendant were initially recorded because he was only a civilian witness.
Once Carrega and Walker began to suspect that defendant was lying about the person named "Kareem Thomas," whether about his identity or for some other reason, Carrega took defendant back to the interview room from the area where he had been looking at photos. Walker left to retrieve a Miranda form. Once Walker returned, he formally administered the Miranda warnings to defendant on videotape, and defendant waived his right to remain silent.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Defendant then told the two officers that he had earlier encountered the victim through some people who had come into the neighborhood to buy drugs. When the victim later arranged a meeting with defendant to complete a drug transaction, defendant pulled his gun, pointed it at the victim, and said "you know what it is," meaning that he was robbing the victim. At the time, defendant explained that he was "starving for some money, we got into a tussle, and the gun went off."
Defendant claimed he had owned the gun for a "long time," and that after the incident, he tossed it into a nearby sewer. After "the gun went off," he ran back home, but eventually called 9-1-1 because his conscience was bothering him. He acknowledged being "a little tipsy that night," and added that he took nothing from the victim either before or after the shooting.
The Newark Sanitation Sewerage Department opened the sewer in an effort to locate the gun, but it was never found. Phone records verified that the 9-1-1 contact regarding the body came through defendant's telephone.
The medical examiner testified that the victim, Robert Crook, died of a single gunshot wound to the left side of his face, which caused him to "pretty much drown [in his] own blood." The muzzle of the gun was more than "one centimeter away from the [face] but less than one or two feet away."
There were apparent blood stains on the orange hooded sweatshirt defendant wore that night, but none of defendant's clothing tested positive for blood. The State's forensic scientist testified that modern detergents could wash away trace amounts of blood, even though a stain would remain visible on the garment.
II
On April 11, 2012, the jury was brought into the courtroom to return the verdict. The foreperson reported that the jury found defendant not guilty on counts one and two, charging him with first-degree robbery, N.J.S.A. 2C:15-1, and first-degree felony murder, N.J.S.A. 2C:11-3. The jury also acquitted defendant on count three, first-degree murder, N.J.S.A. 2C:11-3, and aggravated manslaughter, N.J.S.A. 2C:11-4(a). At this point, the foreperson realized the jury had mistakenly skipped over the reckless manslaughter offense, the third option listed on the verdict sheet as a lesser-included of murder.
The transcript states:
The Court: . . . Mr. Foreperson, you have the verdict form in front of you. You've indicated the jury's determination and that each decision with respect to each question asked for each count is unanimous; is that correct?
The Foreperson: Yes, your honor.
The Court: As to Count 1, Robbery in the first degree, how does the jury find?
The Foreperson: Not guilty.
. . . .
The Court: As to Count 2, Felony Murder in the first degree, how does the jury find?
The Foreperson: It instructed us to go to --
The Court: Okay. Proceed to question three. As to Count 3, Murder in the first degree, how does the jury find?
The Foreperson: Not guilty.
. . . .
The Court: As to Aggravated Manslaughter, how does the jury find?
The Foreperson: Not guilty.
. . . .
The Court: As to Reckless Manslaughter, how does the jury find?
The Foreperson: It said to proceed to four.
The Court: No. If you find [defendant] guilty, go to 4, otherwise proceed to 3C.
You found him not guilty --
The Foreperson: Not guilty.
The Court: -- on 3B, as to Aggravated Manslaughter.
As to 3C, how did you find the defendant?
The Foreperson: As to 3C, we didn't vote on that one.
The Court: All right. I'm going to ask the jury to go back in and continue your deliberation.
. . . .
The Court: . . . Now, it's 4:30. I'm going to instruct you that you'll have to come back tomorrow at 9 o'clock. I will also collect the verdict sheet, because there are other questions, and those are questions four, five and six, and you reached a unanimous verdict on that. That is the verdict that we will read tomorrow and I will accept from the jury as it's written on the verdict sheet today. The remaining matter, question 3C, the lesser included offense of reckless manslaughter is the question that you will continue deliberations on tomorrow.
Treating the verdict as merely incomplete, the trial judge stopped the jury and released them for the day. The following morning when they returned to the courthouse, they resumed deliberations as to all remaining counts. The jurors confirmed by note that they had mistakenly overlooked the reckless manslaughter question and had not discussed it. The note also indicated, however, that "Once we got clarification, we were then able to all vote and get a final unanimous decision on [reckless manslaughter]. Our answer for [reckless manslaughter] then affected the remaining [counts]. We are currently deliberating on the remaining [counts:] four, five, and six."
After the jury returned its complete and final verdict, finding defendant guilty of reckless manslaughter, unlawful possession of a weapon, and possession of a weapon for an unlawful purpose, defendant's attorney took the opportunity to look at the original verdict sheet. He objected to the entry of the verdict, stating that the jury had first marked the possession of a weapon offenses and the hindering charge "not guilty," crossed out the notation on the verdict sheet, and marked the charges "guilty." The trial judge responded that the verdict sheet only served to guide the jury, and that their final verdict was the decision reported in the courtroom. The judge considered the cross-outs on the verdict sheet to be inconsequential in light of the jury's final decision. The trial judge had actually polled each juror, and the polling confirmed the foreperson's statement that the verdicts were unanimous.
Prior to jury deliberations on the first set of charges, both counsel raised the issue that juror number eleven had been "sleeping, yawning, stretching, clearly not paying attention," in addition to being late every trial day, including the day the judge rendered her final charge and the jury commenced its deliberations. It was agreed that juror eleven would be designated as an alternate, and that a second alternate would be selected at random. Accordingly, juror eleven served as an alternate as per the court and counsel's agreement, along with juror thirteen who was randomly chosen.
Contrary to State v. Ragland, 105 N.J. 189 (1986), the judge selected two alternates for the next trial on the certain persons not to possess charge. As chance would have it, jurors three and ten were drawn as the alternates for the second trial, meaning that both alternates from the first trial served as members of the second jury. The judge read the jury the applicable model jury charge, and Walker returned to the stand to testify as to defendant's prior criminal conviction history, which the State alleged made him a "certain person not to possess."
In cases where a defendant is charged with both unlawful possession of a weapon and unlawful possession of a weapon by certain persons, the Supreme Court in Ragland has directed that in the interests of judicial efficiency, the trial should proceed in two stages before the same jury. Supra, 105 N.J. at 195.
Model Jury Charge (Criminal), "Certain Persons not to have any Firearms" (2005).
During these deliberations on April 12, as the day wore on, the jurors sent out notes concerning scheduling. One unidentified juror sent out a note advising that he or she participated relying upon the court's representation that the trial would end by April 5. That juror asked to be excused for April 17, because of the preplanned out-of-town travel. The jury panel sent another note asking: "Given the fact that there are two new jurors who were not given the possibility to view the same level of evidence that leads us here, can those evidences which pertain to the same case be reviewed?" A third note indicated another unidentified juror had vacation plans with his or her young children from April 14 to April 21, and asked if an alternate could replace that person.
In response to the jurors' question regarding evidence, after the attorneys placed their respective positions on the record, the judge decided to ask the jury to specify the items they wished to "review." When the jury was brought into the courtroom for that purpose, the judge addressed all three notes and told the panel that it was premature to discuss scheduling conflicts. When the judge asked the jury to specify the items they wanted, the foreperson said they wanted to see pictures of defendant, "the clothing and the boots." The assistant prosecutor argued, relying on the model jury charge, that the jury was entitled to "look at the same exact evidence again," because it was "the same exact jury." The judge responded that it was a different jury, with different alternates, and for that reason she would not allow the jury to look at the evidence again.
Where the same jury has already convicted the defendant of another possessory weapons offense, the model jury charge provides:
On the issue of possession, although you may consider evidence previously introduced, the State must prove beyond a reasonable doubt that [the] defendant possessed the firearm before you may find the defendant guilty on this charge. In deciding whether the State has carried its burden of proof, you must set aside your previous verdict on this question and begin your deliberations anew.
[Model Jury Charge (Criminal), "Certain Persons not to have any Firearms" (2005).]
After a brief recess, the prosecutor, based on Ragland, argued to the court that it was error to have substituted the two new alternates because the deliberating jury should have been the same. The prosecutor also argued that if the pictures the jury requested had been shown during the first trial, it was not error to allow the jury to see the materials again. When she repeated that selecting new alternates "was really not something that we should have done," the judge said:
And I'm going to reiterate the decision that I indicated before. This is a new trial with new evidence that has to be introduced and considered by the jury. And, since that motion or application wasn't made during the course of this trial, because the two trials stand separate and apart. And I believe Ragland stands for the concern that the Court recited, that that first jury deciding possession may simply take that consideration and apply it to the facts that are presented in this new trial. And that's why they're cautioned to consider anew the evidence.
. . . .
Alright. Because the State has rendered an objection, I'm not going to reinstruct them. I've instructed them on two occasions with this trial as to the presumption of innocen[c]e and that the State has to prove it beyond a reasonable doubt. And, in that question, there's no inference or intimation that they don't understand the law. They're asking specifically for evidence. And I'm gonna just reinstruct them with respect to their consideration of the evidence that's been submitted and their recollection.
Sometime in the late afternoon, the jury sent out a note stating "Cannot get a unanimous, at this moment, decision. Very firm stances in here." Rather than giving the Allen charge, however, the judge sent the jury home for the day.
Allen v. United States, 164 U.S. 492, 17 S. Ct. 154, 41 L.Ed. 528 (1896). In Allen, the Supreme Court approved supplemental jury instructions intended to persuade a deadlocked jury to reach unanimity by reminding the jurors that "it was their duty to decide the case if they could conscientiously do so" and "they should listen, with a disposition to be convinced, to each other's arguments." Id. 164 U.S. at 501, 17 S. Ct. at 157, 41 L.Ed. at 531.
After reporting to the courthouse the following morning, at 9:30, juror number eleven sent a note stating that she had a family funeral to attend at 11:00. Defense counsel asked to postpone the trial two weeks so that juror eleven could attend the funeral, and to enable the other jurors who had scheduling conflicts to fulfill their commitments. The judge decided to excuse juror eleven outside the presence of the others, and explain to the remaining jurors that she was excused for purely personal reasons. The judge did not postpone the trial; rather, she gave the jury the appropriate instruction requiring them to begin deliberations anew. Model Jury Charge (Criminal), "Judge's Instructions when Alternate Juror Empaneled after Deliberations have Begun" (2013). The jury resumed deliberations at 9:45 a.m. At 11:37 a.m., the jury reached their verdict.
Before the sentencing hearing, the State filed a motion to have defendant sentenced as a persistent offender, N.J.S.A. 2C:44-3(a), which application was denied. Defendant, who was forty-five at the time, had two juvenile adjudications, and been convicted of three prior indictable offenses and six disorderly persons charges. The judge found aggravating factors three, six, and nine, N.J.S.A. 2C:44-1(a)(3), (6), and (9), and no factors in mitigation, N.J.S.A. 2C:44-1(b). She imposed a ten-year aggregate sentence on the reckless manslaughter, unlawful possession of a weapon, possession of a weapon for unlawful purpose, and hindering convictions. With little explanation, the judge also imposed a consecutive ten-year term on the certain persons offense, of which five years were parole ineligible.
On appeal, defendant raises for our consideration the following issues:
POINT I
THE TRIAL COURT ERRED TO THE DEFENDANT'S PREJUDICE BY FAILING TO PROVIDE THE JURY WITH THE ENTIRE MODEL INSTRUCTION ABOUT HOW TO CONSIDER UNRECORDED STATEMENTS ALLEGEDLY MADE BY THE DEFENDANT. (U.S. CONST. AMENDS. V, VI, XIV; NJ CONST. (1947) Art. I, PARS. 1, 9, and 10) (Not Raised Below).
POINT II
THE TRIAL COURT ERRED TO THE DEFENDANT'S PREJUDICE BY GIVING THE INSTRUCTION ON FAILURE TO TESTIFY WITHOUT THE DEFENDANT'S CONSENT. (U.S. CONST. AMENDS. V, VI, XIV;
NJ CONST. (1947) Art. I, PARS. 1, 9, and 10) (Not Raised Below).
POINT III
THE COURT IMPROPERLY DISMISSED A DELIBERATING JUROR AND REPLACED HER WITH AN ALTERNATE AFTER THE JURY HAD ANNOUNCED AN INABILITY TO REACH A UNANIMOUS VERDICT, THEREBY DENYING DEFENDANT A FAIR TRIAL. (U.S. CONST. AMENDS. V, VI, XIV; NJ CONST. (1947) Art. I, PARS. 1, 9, and 10) (Raised Below).
POINT IV
THE TRIAL COURT FAILED TO PROPERLY ALLOCATE JAIL CREDITS TO THE SENTENCE TO BE SERVED FOR THE POSSESSION BY A CONVICTED PERSON OFFENSE, DENYING THE DEFENDANT APPROXIMATELY THIRTY-ONE MONTHS OF PRE-DISPOSITIONAL JAIL CREDIT. (Not Raised Below).
In his pro se filing, defendant raises the following points:
Point I
I had a right to hear the verdict to all the counts. When the Judge realize[d] the jury had skip[p]ed the "reckless manslaughter" count. The Judge should have granted my attorney[']s request to hear the remaining verdicts that the Jury had decided . . . . .
Point II
The Judge should have r[u]n the sentence concurrent. The jury found that the homicide was committed by a firearm in this case. If this is true the homicide and the possession of the fire-arm, [were] all part of the same set of events, [a]nd all the related sentences should be served concurrently.
III
Where an error is "clearly capable of producing an unjust result," Rule 2:10-2, it is a basis for reversal even if not objected to at trial. The possibility must be "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. O'Brien, 200 N.J. 520, 542 (2009) (quoting State v. Macon, 57 N.J. 325, 336 (1971)). Our review is focused on whether the error, either plain or harmless, led to an unjust result. See State v. Lazo, 209 N.J. 9, 26 (2012). Even if not objected to below, we must determine whether the outcome was prejudiced by the error. Macon, supra, 57 N.J. at 338.
IV
Defendant's first point, not raised below, is that the trial court's omission of certain language from the model jury instruction was prejudicial. Undoubtedly, "[a]ppropriate and proper charges to a jury are essential for a fair trial." State v. Green, 86 N.J. 281, 287 (1981). Plain error in a jury charge occurs where the "legal impropriety in the charge prejudicially affecting the substantial rights of the defendant and 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. Hock, 54 N.J. 526, 538 (1969), cert. denied, 399 U.S. 930 (1970).
A defendant has the right to instructions requiring jurors to cautiously evaluate testimony conveying his out-of-court statements, and that they "disregard [such] statement[s]" if they deem them not credible. State v. Harris, 156 N.J. 122, 182-83 (1998). Yet, when a defendant does not request it, the trial court's omission of the entire instruction is not reversible error per se. Id. at 183. So long as the court gives a general credibility instruction, plain error will not ordinarily be found. State v. Crumb, 307 N.J. Super. 204, 251 (App. Div. 1997), certif. denied, 153 N.J. 215 (1998).
In this case, the omitted portion of the model jury charge addressed the possibility of a witness's failure of recollection when recalling an oral statement made by defendant:
In considering whether or not an oral statement was actually made by the defendant, and, if made, whether it is credible, you should receive, weigh[,] and consider this evidence with caution based on the generally recognized risk of misunderstanding by the hearer, or the ability of the hearer to recall accurately the words used by the defendant. The specific words and the ability to remember them are important to the correct understanding of any oral communication because the presence, or absence, or change of a single word may substantially change the true meaning of even the shortest sentence.
You should, therefore, receive, weigh[,] and consider such evidence with caution.
[Model Jury Charge (Criminal), "Statements of Defendant" (2010).]
Defendant contends that the statements he allegedly made before having been Mirandized and videotaped were essential to the State's case, and that the court's failure to remind the jury that memory can distort, as called for in the instruction, was reversible error. Clearly, it is important for judges to give complete instructions, which did not occur here. In this case, however, the omission did not produce an unjust result.
At trial, defendant did not dispute the contents of his unrecorded statements. In fact, during summation, counsel argued to the jury that the police were remiss in failing to more thoroughly search for "Kareem Thomas" and investigate whether he had any involvement.
Additionally, however, the unrecorded statements did not themselves contribute to the elements of the offense the State was required to prove beyond a reasonable doubt. It was his recorded admissions regarding the shooting that constituted the essential proofs the State was required to demonstrate. The unrecorded and unchallenged statements were merely context, and simply explained the reason the officers became suspicious of defendant.
Furthermore, in order to have found defendant guilty of only reckless manslaughter, the jury must have accepted the videotaped statements in their entirety. They acquitted defendant of robbery and felony murder, murder, and aggravated manslaughter, accepting his narrative that the gun fired accidentally as he and Crook struggled. The unrecorded statements had no impact on the meaning of the recorded statement. Therefore, since the balance of the model charge was given, and the videotaped statements alone satisfied the statutory elements, we find no prejudice resulted and that the omission was harmless error.
V
Defendant also contends, for the first time, that the court erred by instructing the jury regarding defendant's failure to testify in the absence of directly obtaining his consent. The instruction reads:
As you know, defendant elected not to testify at trial. It is his/her constitutional right to remain silent.
You must not consider for any purpose or in any manner in arriving at your verdict the fact that defendant did not testify. That fact should not enter into your deliberations or discussions in any manner, at any time.
Defendant is entitled to have the jury consider all evidence presented at trial.
He/she is presumed innocent whether or not he/she chooses to testify.
[Model Jury Charge (Criminal), "Defendant's Election Not to Testify" (2009).]
During the charge conference, the trial judge enumerated all the instructions she intended to read to the jury, including the no-adverse-inference instruction, in the presence of defendant and his attorney. Neither objected. The judge did voir dire defendant regarding his decision not to testify, but did not ask him directly about the instruction.
A defendant is entitled to the complained-of jury instruction when requested, as it reminds the jury that the burden of proof rests solely with the State. See State v. Bogus, 223 N.J. Super. 409, 422 (App. Div.), certif. denied, 111 N.J. 567 (1988). The omission of the instruction when it is requested "requires a harmless-error analysis." State v. Camacho, 218 N.J. 533, 537 (2014).
Defendant argues that the court's failure to address him directly had the clear capacity to prejudice him and bring about an unjust result. A footnote to the model jury charge indicates that a "defendant's individual consent should be obtained when giving this charge." Model Jury Charge (Criminal), "Defendant's Election Not to Testify," (2009), at n.1. Such material, however, is "not binding authority." State v. Bryant, 419 N.J. Super. 15, 28 (App. Div. 2011).
Where codefendants differ as to whether the instruction should be read to the jury, we have concluded that it is not error to give the instruction, and the codefendant who does not want the instruction has no "constitutional right to resist." State v. McNeil, 164 N.J. Super. 27, 31 (App. Div. 1978), certif. denied, 79 N.J. 497 (1979). We have also found that where a defendant fails to appear for trial, the trial judge's instruction to the jury about a defendant's decision not to testify was not prejudicial. See State v. Lynch, 177 N.J. Super. 107, 115 (App. Div.), certif. denied, 87 N.J. 347 (1981).
Clearly, "under ordinary circumstances the charge should not be given except upon request by [the] defendant." Ibid. But even if we assume for the sake of argument that the court erred by failing to directly inquire of defendant as to whether he wanted the instruction given, the real question is whether the error led to a result the jury might not otherwise have reached. O'Brien, supra, 200 N.J. at 542.
The State produced overwhelming evidence against defendant in this case, namely his videotaped confession, in the context of his 9-1-1 call, subsequent statements and conduct, and blood-stained sweatshirt. This is the bedrock upon which the State's case was built. In light of the confession, the trial court's failure to directly ask defendant about the instruction did not lead the jury to a result it otherwise might not have reached. Accordingly, even if error, the error was harmless.
VI
Defendant also contends the court erred by replacing juror eleven with an alternate after the jury had advised the judge that they "[c]annot get a unanimous, at this moment, decision. Very firm stances in here." In other words, that the jury should not have continued deliberations with a new member, as they had reached a deadlock which entitled him to a mistrial.
It bears repeating that juror eleven's stated reason for withdrawal related to a personal problem, i.e., a family funeral, as opposed to, for example, the removal of a juror at the request of the rest of the panel. State v. Valenzuela, 136 N.J. 458, 468-69 (1994). Hence the substitution, at that stage of deliberations, was not prejudicial.
We are mindful that the court and counsel had previously excluded the juror from deliberations, therefore, it is puzzling that she was included in the jury which deliberated on the charge of certain persons not to possess.
It is uncontroverted that the court has the authority to substitute a juror when personal reasons make it necessary. R. 1:8-2(d)(1) allows for such a substitution, "[i]f the alternate juror[] [is] not discharged and if . . . a juror . . . is discharged by the court because of . . . inability to continue." When that occurs, the court instructs the jury to recommence deliberations anew, as was done in this case. Ibid.; Model Jury Charge (Criminal), "Judge's Instructions when Alternate Juror Empaneled after Deliberations have Begun" (2013) (providing instructions that the jury is a new jury and as such must start its deliberations over again).
When such substitutions are made, it must not be at a stage where "deliberations have progressed too far to permit the substitution of an alternate." State v. Ross, 218 N.J. 130, 149 (2014). Jurors are substituted only to avoid the waste of resources that would result from a premature declaration of mistrial. See State v. Valenzuela, 136 N.J. 458, 468 (1994). Although this jury's note indicated they were at a crossroads, it did not indicate that they were deadlocked, that proceeding further would be fruitless, or anything along those lines. The note merely explained at the end of a day that no decision could be reached "at this moment" because there were "very firm stances" in the jury room. Even after the substituted juror joined deliberations, it was nearly two hours before the verdict was reached. Therefore, the substitution was not error.
As we have said, State v. Ragland suggests that when a certain persons not to possess trial follows after a defendant's conviction on other charges, the same jury should be employed. In this case, that did not occur, but the alternates were present throughout the trial and heard the judge's instructions with regard to the certain persons charge, which instructions are not challenged on appeal. The issue is not raised as error on appeal. No prejudice inured to defendant in any event.
VII
Defendant in his pro se brief argues that "the judge should have granted my attorney's request to hear the remaining verdicts," by which we assume he refers to their verdicts on unlawful possession of a weapon, possession of a weapon for an unlawful purpose, and hindering. He offers no fact or law in support of his claim of error. In any event, we agree that the judge correctly reasoned that the final verdict was the decision which the jury reached after they understood they had mistakenly overlooked the reckless manslaughter charge, and resumed deliberations. Defendant had no "right" to hear the announcement of an incomplete verdict when the jury was confused, before that confusion was clarified. We need not comment further. R. 2:11-3(e)(2).
VIII
Finally, defendant also contends that his sentences should have been concurrent, not consecutive. The requirement that a judge articulate the reasons sentences are to be served on a consecutive or concurrent basis is of long standing. See State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986) (delineating the factors to be considered in making the concurrent-consecutive decision). Where a judge fails to do so, and the reasons are not self-evident, a remand for resentence is necessary. State v. Miller, 108 N.J. 112, 122 (1987); State v. Jong, 359 N.J. Super. 85, 98 (App. Div.), certif. denied, 177 N.J. 492 (2003). Without understanding the judge's analysis, we simply have no basis for reviewing that discretionary decision. State v. Fuentes, 217 N.J. 57, 74 (2014). Accordingly, we vacate the sentence and remand for resentencing and correction of the judgment of conviction to reflect appropriate jail credits.
Affirmed, except the sentence is vacated and the matter is remanded for resentencing. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPEALATE DIVISION