Opinion
DOCKET NO. A-2087-09T4
04-12-2012
STATE OF NEW JERSEY, Plaintiff-Respondent, v. SULTAN KIRKLAND, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Gilbert G. Miller, Designated Counsel, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (LeeAnn Cunningham, Special Deputy Attorney General/ Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher, Baxter and Maven.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 08-03-0733.
Joseph E. Krakora, Public Defender, attorney for appellant (Gilbert G. Miller, Designated Counsel, on the brief).
Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (LeeAnn Cunningham, Special Deputy Attorney General/ Assistant Prosecutor, of counsel and on the brief). PER CURIAM
In this appeal, we consider, among other things, the adequacy of the judge's charge to the jury, as well as his supplemental instructions during deliberations. We reverse because the judge failed to instruct the jury regarding defendant's right to remain silent until after the jury had stated it had reached a verdict and because, in answering a question posed by the deliberating jury, the judge precluded the jury's apparent request for a readback.
I
Defendant and co-defendant Antoine Leake were indicted and charged with: second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1; two counts of first-degree armed robbery, N.J.S.A. 2C:15-1; third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b); two counts of second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); fourth-degree unlawful possession of hollow point bullets, N.J.S.A. 2C:39-3(f); fourth degree unlawful possession of a large capacity ammunition magazine, N.J.S.A. 2C:39-3(j); fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a); and third-degree possession of heroin, N.J.S.A. 2C:35-10(a)(1).
Defendant and Leake were tried together. The facts adduced during the trial revealed that, at approximately 11:00 p.m., on July 31, 2007, Perry Gray entered the Paradizio Club on Clinton Avenue in Irvington, had a few drinks, and left at approximately 11:30 p.m. As he was walking down Clinton Avenue, two men came up from behind Gray and robbed him. Gray assumed the two perpetrators had a gun, because he felt a metal object pressed against his back. He did not see the face of the person holding the metal object. While that man was standing behind Gray, the other went through Gray's pockets. Gray described the other culprit as "[s]horter than me, light-skinned, dreads," and as wearing a white T-shirt with beads around his neck. That man took Gray's cell phone, cigarette lighter, book bag, work boots, and some money. That man then told Gray to keep walking down the street; the two culprits walked off in the opposite direction.
After the robbery, Gray walked to the Irvington bus terminal on Springfield Avenue, where he told Irvington Police Officer Freddie Aleman that he had just been robbed outside the Paradizio Club. Gray described both assailants as short, "[o]ne was light-skinned with dreads and the other one was brown skinned," with short hair.
Albert Lampty also briefly patronized the Paradizio Club that evening. Lampty testified that he left the club sometime after 11:00 p.m. and walked to his nearby car on Sharon Avenue. As he was about to enter his car, another car pulled up. According to Lampty, two black men, one with shaved hair and one with dreadlocks, got out of their car and walked towards him. The dreadlocked man was holding a gun; he told Lampty to stay calm and let the other man search him. The other culprit took from Lampty his cell phone, Bluetooth earpiece, wristwatch, and wallet, which held his license, credit cards, and $130.
Meanwhile, Police Sergeant Latimer Tavares, Detective Craig Costello and State Trooper David Valente responded to Officer Aleman's call and approached the area. As they approached Sharon Avenue, Costello saw what he believed was a robbery taking place in the middle of the street. Tavares immediately stopped the vehicle, backed up and headed down Sharon Avenue.
Both Costello and Tavares observed a car in the middle of the street and three individuals: one with his hands in the air, another pointing a gun at him, and the third going through the victim's pockets. As Costello and Tavares approached, the man with the gun ran towards the car that was stopped in the middle of the street, threw the gun inside, and ran up the street, following the other culprit. Costello saw the culprits run between some houses on Sharon Avenue; he and Valente pursued on foot. Tavares "secured" the weapon thrown into the car, and radioed for back-up before providing assistance to Costello and Valente.
Costello admitted losing sight of the two men momentarily as they ran away, but he and Valente found them in the backyard of a nearby house on Sharon Avenue. Costello found and arrested one, whom he later identified as defendant, and Valente found and arrested the other, whom he later identified as Leake. Both were handcuffed and searched.
As Costello and Valente walked the two out of the backyard, Lampty identified both as the individuals who had robbed him. Lampty, however, was unable at the Wade hearing or at trial to identify defendant and Leake as the individuals who had robbed him.
United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).
Tavares testified that the gun recovered from the scene was an Intertec 9-millimeter Uzi. A hollow-point bullet was in the chamber; the weapon was also loaded with a magazine containing four hollow point bullets and twenty-six other live rounds. Tavares handled the gun without wearing gloves, removing the ammunition from the chamber with his fingers. The handgun and bullets were never fingerprinted for evidence.
After they were arrested, defendant and Leake were placed in a police vehicle and taken back to the police station for processing. Valente searched Leake and found a Bluetooth earpiece and $265, including forty-five one dollar bills. Costello searched defendant and found a small bag of marijuana, a deck of what was suspected to be heroin, $95 dollars, a Motorola cell phone, a blue cigarette lighter, and a Kenneth Cole wristwatch. While at the police station, Lampty identified the Bluetooth earpiece and the wristwatch as his, and Gray identified the cell phone and blue cigarette lighter as his.
Witnesses were called by defendant to testify about his character. Defendant did not testify.
Defendant was convicted of second-degree conspiracy to commit robbery, first-degree armed robbery, second-degree robbery, third-degree possession of a weapon for an unlawful purpose, fourth-degree possession of an ammunition magazine, and fourth-degree resisting arrest. The trial judge denied defendant's motion for a new trial and, following appropriate mergers, sentenced defendant to: an extended thirty-year prison term with an eighty-five percent period of parole ineligibility, under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, for first-degree armed robbery; a consecutive prison term of eight-and-one-half years, with a NERA eighty-five percent period of parole ineligibility, on the second-degree robbery conviction; and a concurrent prison term of four-and-one-half years on the third-degree unlawful possession of a handgun conviction.
Defendant appealed, presenting the following arguments for our consideration:
I. THE COURT ERRONEOUSLY FAILED TO GRANT A MISTRIAL WHEN ITS INITIAL JURY CHARGE WAS CONSTITUTIONALLY DEFICIENT, THE JURY INDICATED IT HAD REACHED A VERDICT BASED ONWe reverse and remand for a new trial on the grounds set forth in Points I and II.
THE DEFICIENT CHARGE, AND THE COURT'S SUBSEQUENT PROVISION OF THE INSTRUCTION ERRONEOUSLY OMITTED FROM THE CHARGE DID NOT CLEARLY REQUIRE THE JURY TO DISREGARD ITS PRIOR SUBORDINATE AND ULTIMATE FINDINGS AND BEGIN ITS DELIBERATIONS COMPLETELY ANEW FROM THE STARTING POINT OF DEFENDANT'S PRESUMED INNOCENCE; ALTERNATIVELY, THE COURT'S REFUSAL TO ACCEPT THE JURY'S FIRST ANNOUNCED VERDICT WAS AN ABUSE OF DISCRETION.
A. Application for Mistrial.II. THE COURT ABUSED ITS DISCRETION BY PRECLUDING THE JURY'S REQUEST FOR A MEANS TO REVIEW THE TESTIMONIES OF FOUR EYEWITNESSES TO ALBERT LAMPTY'S ROBBERY, IN FAILING TO OFFER THE JURY THE OPPORTUNITY TO HEAR A TAPE RECORDING OF THOSE TESTIMONIES AND BY INDUCING A VERDICT BASED ON INADEQUATE DELIBERATIONS.
B. Court's Obligation to Accept Jury's Initial Attempt to Return Verdict.
III. ALBERT LAMPTY'S OUT-OF-COURT IDENTIFICATION OF THE DEFENDANTS WAS IMPERMISSIBLY SUGGESTED BY THE POLICE CONDUCT SURROUNDING HIS IDENTIFICATION, AND EVIDENCE OF THAT IDENTIFICATION WAS THUS IMPROPERLY ADMITTED.
IV. THE COURT ERRONEOUSLY PERMITTED THE STATE TO ADDUCE A HEARSAY DESCRIPTION OF DEFENDANT BY PERRY GRAY (Not Raised Below).
V. THE COURT ERRONEOUSLY FAILED TO CHARGE POSSESSION OF STOLEN PROPERTY AS A LESSER-INCLUDED OFFENSE TO THE CHARGES OF ARMED ROBBERTY OF PERRY GRAY AND ALBERT LAMPTY (Partially Raised Below).
VI. DEFENDANT WAS ENTITLED TO A JUDGMENT OF ACQUITTAL, AND HIS CONVICTION IS AGAINST THE WEIGHT OF THE EVIDENCE.
VII. THE COURT'S JURY INSTRUCTIONS ERRON-EOUS[LY] PROVIDED SUPER[S]EDED INSTRUCTIONS ON DEFENDANT'S ELECTION NOT TO TESTIFY WHICH SUGGESTED [] HE HAD AN OBLIGATION TO TESTIFY AND THUS VIOLATED HIS STATE AND FEDERAL RIGHTS TO REMAIN SILENT AND FAILED TO SPECIFY THE SUGGESTIVE CIRCUMSTANCES WHICH RENDERED ALBERT LAMPTY'S OUT-OF-COURT IDENTIFICATION SUGGESTIVE (Partially Raised Below).
VIII. DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE.
II
Defendant contends that the trial judge erred in denying his motion for a mistrial that was based on the inadequacies of the initial jury charge. That is, defendant argues that the charge was constitutionally deficient because it contained no instructions regarding defendant's election not to testify -- a circumstance that was not remedied until the jury had deliberated to the point it was ready to deliver its verdict. Defendant also correctly asserts that this error was further aggravated by the subsequent charge, which failed to instruct the jury to begin its deliberations anew -- a circumstance that was not remedied until further deliberations had occurred. We agree that the erroneous charge and the subsequent faulty instructions require a new trial.
Our consideration of these circumstances requires close examination of portions of the judge's charge to the jury, as well as the questions posed by the jury thereafter and the judge's responses and additional instructions.
A
After counsels' closing arguments, the judge charged the jury. Although defendant and Leake had requested that the judge instruct the jury that it could not consider their failure to testify on their own behalf, the judge inadvertently failed to include such an instruction. The judge also mistakenly failed to instruct regarding the manner in which the jury could consider character testimony. No objections were lodged after the judge concluded his reading of a charge that omitted these instructions.
The jury began its deliberations on Wednesday, May 20, 2009, at approximately 3:05 p.m. Thirty minutes later, the jury asked for copies of "the police reports and evidence reports." The judge informed the jury, at 3:36 p.m., that those items were not in evidence and, therefore, not available to the jury; the jury returned to its deliberations at 3:37 p.m.
At 4:10 p.m., the jury asked two questions. The first was: "Can we please leave to go home?" The second inquiry sought "transcripts of . . . the three police officers and Lampty's testimony for tomorrow." The following exchange concerning the judge's proposed response to these questions ensued between defense counsel and the judge:
[DEFENDANT'S COUNSEL]: I assume that means readback.
THE COURT: Oh, I don't assume it means readback. I assume it means exactly what it says.
[DEFENDANT'S COUNSEL]: Okay.
THE COURT: Can we get transcripts, and the answer is no.
[DEFENDANT'S COUNSEL]: And I think it should be supplemented, whether you're asking for a readback, read back to me. That seems to be what I think that question means. They just have the wrong word. They want it written, but, obviously, . . . you would give them a readback if they asked for it.
. . . .
THE COURT: I'll explain to them that this [testimony] was tape-recorded. We don't have the luxury of transcripts or the luxury of having a court reporter here to read back transcripts, because she wasn't here.
So it would take us some time to get us to get together the tape recording. And then, of course, the tape recording could conceivably be played back to you, but it would be in real time.
Now, if you need, if the Jury needs that and requests that, then I will embark upon that, but it's altogether likely that, if that is the case, that the soonest that we would be able to do that is a week from tomorrow when
you would be asked to return. Now, if you need that, . . . I'll be able to accomplish it.
. . . .
[DEFENDANT'S COUNSEL]: Judge, I think that's quite involved in the sense of indicating to them what their options are with respect to getting what I consider to be a tantamount to request for a readback, even though it says transcript.
But, . . . I don't want to . . . "threaten" . . . to keep them here for that much longer period of time if they want what they want.
THE COURT: No, they didn't ask for that. They didn't ask for a readback. They asked for transcripts.
[DEFENDANT'S COUNSEL]: Right. You can't give them transcripts. We know that.
THE COURT: That's the answer. . . . [T]he answer to that question is, no, you can't have transcripts.
Now, . . . if you're suggesting to me that that may mean something else, then I'm going to tell them what that might entail. And it says for tomorrow, the answer would be, well, if you're asking for a readback, it is not likely . . . that we will have that for you until a week from next Tuesday.[] So if
that is what you're asking, then factor that into your consideration. That's all.
Now, if you just want me to answer them no -- which I think is an obvious and easy answer. "Can we have transcripts of the police officer's testimony for tomorrow," the answer is no. I'll say that.
. . . .
[DEFENDANT'S COUNSEL]: Judge, given those options, again, I would request that you just tell them no.
Despite the suggestions in the judge's supplemental instructions regarding the likelihood that the jury would have to return nearly a week later if it did not reach a verdict that night, the jury was ultimately permitted to return the next day to continue its deliberations. Here, if he was pressed by defense counsel to inquire whether the jury actually sought a readback, the judge intended to tell the jury to "take" that scheduling circumstance "into consideration" when determining whether or what they wanted read back.
At 4:25 p.m., the judge brought the jurors into the courtroom and advised them that it was still early and they would be required to continue their deliberations. Regarding their requests for transcripts, the judge responded: "The answer is no to your question. We don't make transcripts. We record that, but we would have to go through a process to get a transcript, and we do not have a transcript for you to take into the jury room to consider." At 4:27 p.m., the jury returned to the jury room to continue its deliberations.
At approximately 5:00 p.m., the judge brought the jurors back into the courtroom and advised that "unless you feel that additional time today will result in a verdict, . . . I'm going to have to let you leave today." He explained to the jury that because of the court's schedule and the holiday weekend, "the next time . . . that you would come back to continue would be next Wednesday." He then stated: "So, . . . if you feel additional time today will result in a verdict and if not, then I will excuse you all for today and you will be required to return next week." The jury was asked to return to the jury room, and the judge and counsel conferred about how long they were prepared to stay that night. The judge concluded that deliberations would continue until 6:00 p.m. and directed the sheriff's officer to enter the jury room to so advise the jurors.
We again emphasize that all communications with a jury should occur in the courtroom and be recorded. See, e.g.. State v. Morgan, 423 N.J. Super. 453, 466-68 (App. Div. 2011); State v. Basit, 378 N.J. Super. 125, 131-34 (App. Div. 2005). The minor departure from that rule caused no harm here.
Sometime thereafter, the jury requested the definition of "possession," and the court responded to the request without objection.
The transcript does not reveal the time at which this occurred.
At 6:10 p.m., outside the jury's presence, the judge announced on the record that defense counsel had advised that the judge may not have instructed the jury on defendant and Leake's decisions not to testify. The judge noted:
I didn't remember hearing it, either, but I checked my book and I don't see it here in my book. I don't think that I gave it.
I also do not think that I gave the charge on character witness[es]. I don't think
that was given, either. My proposal is that I would have to give it.
Defendant's counsel objected and requested a mistrial. In denying the request, the judge explained:
Alright, I'll answer that right away. No, this is not a mistrial issue. We . . . often times [sic] recharge juries on many issues even if there was an error. I will note that I asked counsel when I was done with my charge beforehand, no one noticed it then. I didn't notice it then. This jury has been charged plenty throughout this case on this very issue, but I think it's an important issue. And although it's a few sentences, but it's an important one that the defendant should have the jury consider and I should remind them of that.The prosecutor requested that the judge instruct the jury to begin their deliberations anew; the judge agreed.
And so if your request is that the only choice is a mistrial, that's simply not warranted under the circumstances of this case.
The judge then brought the jury into the courtroom, intending to instruct them on the two areas he had inadvertently omitted. As the jurors entered the courtroom, however, they stated they had reached a verdict.
The transcript does not reflect when the jury returned to the courtroom. We can surmise it was approximately 6:15 p.m., because it would appear to have been a very short time after the judge noted the time of 6:10 p.m. during his prior discussion with counsel and because, after the judge gave the supplemental instructions, he noted it was 6:20 p.m.
Over defendant's objection, the judge refused to accept the jury's verdict. The judge then first told the jury that "it has been brought to my attention that when I instructed you on the law, that I did not instruct you on two areas of law." The judge stated that he recalled instructing "on this in the preliminary instruction" but felt that he should have again instructed them in his charge and told the jury that he was "going to repeat those sections for you now." The judge instructed the jury on character testimony and then said:
As you know, the defendants elected not to testify at trial. It is their constitutional right to remain silent. You must not consider for any purpose or in any manner at arriving at your verdict the fact that the defendants did not testify. That fact should never enter into your deliberations or discussions at any time in any manner. The defendants are entitled to have the jury consider all of the evidence presented at trial. They are presumed innocent even if they choose not to testify.Following those instructions, the judge instructed the jury on how to proceed:
Now, what I'm going to do is ask you to return to the jury room. And I know that you've indicated that you have reached a verdict, but I want you to consider . . . all of these things that I have said to you in reaching your verdict at this point.The judge did not inform the jury that it was required to begin anew its deliberations. The jury returned to the jury room but later informed the court it would prefer to return the next day.
Now, the hour is 6:20 and you have indicated that you wanted to stay until 6:00 o'clock. I have been able to make some alternate arrangements so that you may return tomorrow
morning if you think that is necessary. I would ask you to retire back to the jury room to consider the things that I've said now and indicate to me what your position is if you think you need to return tomorrow morning. If you do not, you can indicate . . . that to me, as well. Alright? So, please retire back to the jury room.
The transcript does not reveal how long the jury may have deliberated before asking to return the next day.
The next morning, defendant again moved for a mistrial, which was immediately denied. At 9:44 a.m., the trial judge instructed the jury:
All right. Ladies and Gentlemen, good morning. I'm glad that you're back this morning. I am not going to be able to be here today, but I will be able to ask another judge to continue, so that you can deliberate today, and address any of the questions that you may have.Despite asserting in these instructions that he had previously told the jury to start its deliberations anew, the judge had, in fact, previously omitted that instruction as well.
. . . .
Now, yesterday I read you the rest of the charge, and I told you to begin anew. Those issues that we talked about that I failed to read to you, again, are important, and they should play a part in all of your deliberations. I directed you to begin anew.
. . . .
So if you'll retire now to the jury room, I will have all the evidence delivered, and you may continue your deliberations.
The jury returned to the jury room at 9:45 a.m., and, at 10:55 a.m., sent a note to the court, which read: "Can we please have the definition of possession again?" At 11:35 a.m., another judge brought the jury into the courtroom and instructed on the definition of "possession." At 11:42 a.m., the jury returned to its deliberations. One minute later, the jury advised the judge that it had reached its verdict.
B
Whether a motion for a mistrial should be granted rests within the sound discretion of the trial judge. State v. Harris, 181 N.J. 391, 518 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). The standard a trial judge must apply is whether
the error is such that manifest injustice would result from continuance of the trial and submission of the case to the jury. The consideration of the mistrial motion, however, has one additional element, namely the court's determination of whether or not the prejudice resulting from the error is of a nature which can be effectively cured by a
cautionary instruction or other curative steps.
[Pressler & Verniero, Current N.J. Court Rules, comment 5.1 on R. 3:20-1 (2012).]
The grant of a mistrial should be exercised only to prevent manifest injustice. State v. Ribalta, 277 N.J. Super. 277, 291 (App. Div. 1994), certif. denied, 139 N.J. 442 (1995). Thus, an appellate court should defer to the trial judge's decision and not intervene when a mistrial has been denied unless there was a clear showing of mistaken use of discretion by the trial court, State v. Winter, 96 N.J. 640, 646-47 (1984), or unless "manifest injustice would . . . result," State v. LaBrutto, 114 N.J. 187, 207 (1989).
The initial question is whether a mistrial was required by the omission of instructions as to defendant's decision not to testify. It is essential to the right to a fair trial that jury charges be accurate and appropriate, particularly in criminal cases. State v. Green, 86 N.J. 281, 289 (1981). Our courts "have always placed an extraordinarily high value on the importance of appropriate and proper jury charges to the right to trial by jury. Erroneous instructions on matters or issues material to the jurors' deliberations are presumed to be reversible error." State v. Grunow, 102 N.J. 133, 148 (1986); see also State v. Collier, 90 N.J. 117, 122-23 (1982). That is, erroneous instructions are viewed as "poor candidates for rehabilitation under the harmless error philosophy." State v. Simon, 79 N.J. 191, 206 (1979). The judge's initial charge was erroneous because it failed to instruct on defendant's decision not to testify.
"[T]he right of an accused in any criminal action not to be called as a witness and not to testify has long been a part of New Jersey law." State v. Bogus, 223 N.J. Super. 409, 421 (App. Div.) (citing State v. Hartley, 103 N.J. 252, 260 (1986)), certif. denied, 111 N.J. 567 (1988). In Bogus, we explained:
A defendant's right not to take the stand includes not only the right to avoid giving incriminating responses to inquiries put to him but also to be free from the inquiries themselves. The privilege against self-incrimination is sufficiently important that the Constitution further guarantees that no adverse inferences are to be drawn from the exercise of that privilege, and "forbids either comment by the prosecution on the accused's silence or instructions by the court that such silence is evidence of guilt." Furthermore, a defendant is entitled to have the jury instructed that it may not draw any inferences adverse to the defendant on the basis of his failure to testify.
[Id. at 421-22 (quoting Griffin v. California, 380 U.S. 609, 615, 85 S. Ct. 1229, 1233, 14 L. Ed. 2d 106, 110 (1965)).]
The failure to so instruct a jury is of constitutional dimension. Carter v. Kentucky, 450 U.S. 288, 302-03, 101 S. Ct. 1112, 1120, 67 L. Ed. 2d 241, 252 (1981). Our Supreme Court has recognized that although some constitutional errors may be harmless, "others are of such constitutional magnitude that they are always reversible error." State v. Fusco, 93 N.J. 578, 587 (1983). The failure to instruct a jury that it may not draw an adverse inference from a defendant's constitutional right to remain silent is such an error. Bruno v. United States, 308 U.S. 287, 293-94, 60 S. Ct. 198, 200, 84 L. Ed. 257, 260 (1939); State v. Haley, 295 N.J. Super. 471, 477 (App. Div. 1996).
In downplaying the importance of the omission of the constitutionally-required instruction when denying defendant's motion for a mistrial, the judge expressed his assumption that he had previously instructed the jury on this point. For example, in denying defendant's motion for a mistrial, the judge stated: "This jury has been charged plenty throughout this case on this very issue, but I think it's an important issue. And although it's a few sentences, . . . it's an important one that the defendant should have the jury consider and I should remind them of that." The judge's recollection that the jury was "charged plenty" about this constitutional right was inaccurate. The impaneled jury was never instructed on defendant's right not to testify prior to the commencement of its deliberations. The closest the judge came to giving the instruction occurred during jury selection -- two weeks earlier -- when the judge advised the venire: "A defendant in a criminal case has the absolute right to remain silent and the absolute right not to testify. If a defendant chooses not to testify, the jury is prohibited from drawing any negative conclusions from that choice. The defendants are presumed innocent whether they testify or not." Even assuming the jury could recollect that statement so late in the case without a reminder from the judge, that statement of defendant's rights was inadequate. That instruction during jury selection dealt only with the hypothetical possibility of an election not to testify and, moreover, did not convey that such an election should not even be discussed during deliberations or otherwise considered for any purpose in arriving at a verdict.
In Haley, during a charge conference, the trial judge discussed with the pro se defendant the Model Jury Charge regarding a defendant's election not to testify and asked the defendant if he wanted that charge to be given to the jury. 295 N.J. Super. at 475. Although the defendant requested the charge, the judge inadvertently omitted it, ibid., and neither defendant nor his standby counsel alerted the court, id. at 477. In holding that the judge's omission constituted reversible error, we held that: "the error [was] of such magnitude as to 'cut mortally into the substantive rights of the defendant,' even if acquiesced in, so as to be considered by us." Ibid. (quoting State v. Shomo, 129 N.J. 248, 260 (1992)). "[T]he error in failing to instruct the jury that it may not draw an adverse inference from defendant's constitutional right to remain silent" is an error of "such constitutional magnitude that . . . [it is] always reversible error." Ibid. (quoting Fusco, supra, 93 N.J. at 587). We added:
Even were this a constitutional error that, per se, does not require a reversal, we cannot say with any assurance that the failure to tell the jury it could not consider defendant's lack of testimony adversely "might [not] have contributed to the conviction."
[Id. at 478 (quoting State v. Sanchez, 129 N.J. 261, 278 (1992)).]
The present case differs from Haley because, here, the missing instruction was eventually provided. That distinction, however, makes no difference because the deliberations that preceded the added instruction had progressed too far.
By analogy, when a judge reconstitutes a deliberating jury by substituting a juror, the judge must direct the jury to begin its deliberations anew. State v. Williams, 171 N.J. 151, 170 (2002); State v. Trent, 79 N.J. 251, 255-256 (1979); State v. Miller, 76 N.J. 392, 432 (1978). Moreover, "there are times when jury deliberations have proceeded too far to permit replacement of a deliberating juror with an alternate." State v. Jenkins, 182 N.J. 112, 131 (2004). As a general rule, "[t]he longer the period of time the jury deliberates, the greater is the possibility of prejudice should a juror be substituted or replaced." Miller, supra, 76 N.J. at 407. However, "[t]he concern in determining whether substitution can take place at a given point in the deliberations is not merely the length of time that the jury has deliberated but the effect that the progress in deliberations will have on the reconstituted jury's ability truly to begin deliberations anew." State v. Valenzuela, 136 N.J. 458, 474-75 (1994). Indeed, where the jury is "well-entrenched," it is highly doubtful that a jury will heed the direction to deliberate anew. State v. Williams, 377 N.J. Super. 130, 150 (App. Div.), certif. denied, 185 N.J. 297 (2005).
That is, the question often focuses on "whether the deliberative process has progressed for such a length of time or to such a degree that it is strongly inferable that the jury has made actual fact-findings or reached determinations of guilt or innocence," at which time it is likely that jury's minds are "closed or closing." State v. Corsaro, 107 N.J. 339, 352 (1987). For example, in Jenkins, the Court reversed the denial of a mistrial where a juror had to be added at a point where "the die appear[ed] to have been cast," as demonstrated by the fact that "the newly reconstituted jury returned a verdict in twenty-three minutes." 182 N.J. at 133.
Here, the jury had deliberated, off and on, for approximately three hours and actually reached a verdict before being instructed on the omitted charge. Thus, even if the jury had been instructed to begin anew, there was little prospect it would have been capable of honoring that instruction. Ibid. If it is unlikely that a jury would begin anew when a new juror is added, it is even less likely that they would do so when they are all the same jurors who already reached a decision.
We note that, unlike Jenkins, the jury did not immediately return a verdict after the supplemental charge was given. Indeed, it is difficult to estimate whether the verdict reached prior to the supplemental instructions was impacted by the jury's view of defendant's failure to testify. The transcript does not permit a precise conclusion as to the amount of time that elapsed from the supplemental instructions to the guilty verdict. The jury was instructed about defendant's choice not to testify at 6:15 p.m. on the first day of their deliberations. It is not clear how much longer they deliberated that night; moreover, they were not told to begin their deliberations anew until the next morning at 9:45 a.m. The jury returned to its deliberations at that time but asked for a legal definition at 10:55 a.m., which was not provided until the replacement judge responded to their question at 11:35 a.m. Seven minutes later, the jury returned its verdict. We can assume from the record that the jury deliberated approximately three hours before the omitted instruction was provided and approximately one hour after it was provided. Although suggestive, the timing does not as starkly create doubt, as in Jenkins, that the jury was not able to begin its deliberations anew. But, there is no question that at a point before the omitted instruction was given, the jury had made findings and drawn a conclusion about defendant's guilt.
These circumstances demonstrate that the error in the judge's omission of the important jury instructions regarding defendant's decision not to testify — compounded by the delay in advising the jury to begin deliberations anew once the instructions were provided -- was not harmless. There was a reasonable possibility that the errors contributed to the conviction. Chapman v. California, 386 U.S. 18, 23, 87 S. Ct. 824, 827, 17 L. Ed. 2d 705, 710 (1967); State v. Sanchez, 129 N.J. 261, 278 (1992). Here, like in Jenkins, the error was of such a nature that manifest injustice would likely result, and the prejudicial effect could not effectively be corrected by a curative instruction.
Defendant also argues that the trial judge erred in refusing to accept the jury's initial attempt to return a verdict. In light of our determination that a new trial is required for the reasons we have discussed, we need not consider this additional contention.
We, thus, reverse and remand for a new trial due to the judge's omission of an instruction regarding defendant's decision not to testify and the judge's later ineffective attempts to correct that error.
We reject defendant's argument that the supplemental instruction eventually given by the judge was erroneous. The judge utilized the Model Jury Charge in effect at the time. That charge was worded in a manner now discredited, since it stated that defendants "are presumed innocent even if they choose not to testify" (emphasis added). The Model Jury Charge has since been amended so that judges will now explain to juries that a defendant "is presumed innocent whether or not [he] chooses to testify." Model Jury Charge (Criminal), "Defendant's Election not to Testify" (revised May 4, 2009). We rejected the precise argument urged by defendant here in State v. Miller, 411 N.J. Super. 521, 533 (App. Div. 2010), aff'd in part, remanded in part, 205 N.J. 109 (2011).
III
Defendant also argues that the trial judge abused his discretion by answering the jury's request for "transcripts" in a manner that may likely have deterred the jury in its pursuit of an opportunity to hear again, in some form, the testimony of four witnesses. We agree with defendant that the judge should have been more solicitous of the jury's request and that the judge's unwillingness to offer to the jury a readback of the testimony in question constituted reversible error.
The State argues that defendant should not now be heard to complain, or his argument should be rejected through our application of the invited error doctrine, because defense counsel ultimately acceded to the judge's response to the jury's question. We reject these contentions. Clearly, defense counsel argued at the time that the judge should interpret the jury's question more broadly to include a request for a readback and only consented to the judge's answer to the jury question when it became clear that the judge would have advised the jury that an alternative request would have caused the jury to return to court the following week.
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"When a jury requests clarification, the trial judge is obligated to clear the confusion." State v. Conway, 193 N.J. Super. 133, 157 (App. Div.), certif. denied, 97 N.J. 650 (1984). "So, too, when the jury's question is ambiguous, the judge is obliged to clear the confusion by asking the jury the meaning of its request." State v. Graham, 285 N.J. Super. 337, 342 (App. Div. 1995). Indeed,
[a] question from a jury during its deliberations means that one or more jurors need help and that the matter is of sufficient importance that the jury is unable to continue its deliberations until the judge furnishes that help. An appropriate judicial response requires the judge to read the question with care to determine precisely what help is needed.
[State v. Parsons, 270 N.J. Super. 213, 221 (App. Div. 1994).]
In Parsons, we explained that:
Jury questions present a glimpse into a jury's deliberative process. If a question discloses that the jury needs specific help in understanding issues it must decide, particularly issues related to the elements of the crime charged, and that help is not given, we will not speculate as to whether the verdict would have been different or the same had the help been given.
[Id. at 224.]
To be sure, "the reading of all or part of the testimony of one or more of the witnesses at a trial, criminal or civil, at the specific request of the jury during their deliberations is discretionary with the trial court." State v. Wolf, 44 N.J. 176, 185 (1965); see also Higgins v. Polk, 14 N.J. 490, 493-94 (1954). "However, that broad grant of discretion is not unbridled." State v. Wilson, 165 N.J. 657, 660 (2000). "As a general rule, a deliberating jury's request to hear testimony should be granted." Miller, supra, 411 N.J. Super. at 530. "The same rule applies when the court's record is memorialized in an audio recording, which must be replayed for the jurors when there is no stenographic record to permit a conventional 'read back.'" Ibid. (citing State v. Middleton, 299 N.J. Super. 22, 30-31 (App. Div. 1997)).
Recently, in Miller, the Supreme Court explained:
Juries routinely ask to review trial testimony when they deliberate. Absent"[W]here the testimony is reasonably available, a judge should not refuse to grant a jury request to have it read merely because the reading would take time. . . . [T]here is no just reason for insisting that laymen jurors must have an unfailing and unanimous memory of all the testimony they hear in the courtroom." State v. Wolf, 44 N.J. 176, 186 (1965).
"some unusual circumstance," those requests should be granted. The requests are a clear sign that the evidence sought is important to the deliberative process. They also reflect the reality that jurors cannot be expected to have perfect recall of every bit of evidence introduced during a trial. As a result, the "true administration of justice" requires that judges typically accede to jury requests to review testimony.
[205 N.J. at 119-120 (citations omitted).]
In Middleton, the jury, during its deliberations, sent the following question to the judge: "Can we see the testimony of officers Sullivan and Aguiar regarding the identification of the Defendant?" 299 N.J. Super. at 29 (emphasis added). There, as here, the trial had been sound recorded and no transcripts were immediately available. Ibid. The judge did not make any further inquiry of the jury to determine if what they were asking for was, in effect, a read back. Rather, apparently assuming the jury wanted to "see" transcripts of the testimony, the judge answered the jury's question with one word, "no," and sent them back to deliberate. Id. at 30-31. We held that the trial judge had inadequately responded to the jury's question, and that failure to grant the jury's request was reversible error, id. at 24, 32, explaining:
In the circumstances, we are persuaded that the judge was obliged to do more than simply answer its question in the negative. It is well settled that the trial court must respond substantively to questions asked by the jury during deliberations and must assure itself that it understands the import of the questions. We think it plain that this jury, at the least, wanted to review the testimony it had asked to see. That could have been ascertained by the judge and should have been. And if that was the import of the jury's question -- and indeed we can hypothesize no other -- the jury should have been accommodated.We also noted:
We understand that these proceedings were sound recorded and hence that the judge's answer that the jury could not see the testimony was literally correct. But the same would have been so had the proceedings been transcribed by a stenographic reporter. In that instance, the jury also cannot see the testimony. In both cases, however, they can hear it. There can be no doubt that ordinarily a judge should accede to a jury's request to have testimony read back to it. We do not see that any different rule should obtain where the proceedings are sound recorded rather than stenographically transcribed.
[Id. at 30-31 (citations omitted).]
that it may take a bit longer for the operator of sound equipment to find precisely what the jury wants on the tape than it would take a stenographic reporter.
But even if that is so, it would hardly constitute an adequate reason for depriving the jury and the parties of the "readback," which a trained operator can provide. Moreover, in this case, further questioning by the judge surely would have helped to isolate the specific area of the jury's concern and the particular question it had on the testimony it wanted to hear again. In our view, the one option the judge did not have was to simply ignore the jury's request, and that is essentially what the judge did here. Nor, in view of the critical nature of the identification testimony, can we regard that lapse as harmless error.
[Id. at 31-32.]
Similarly, in Graham, we held that the trial judge improperly responded to a note that the jury had sent during its deliberations: "Police report, Grand Jury report." 285 N.J. Super. at 341. There was no record of the discussion between the court, the prosecutor, and defense counsel pertaining to the jury's note, but the trial judge told the jury: "By this I assume you want the police report and Grand Jury report. The short answer to this is I cannot give that to you. The answer is no." Ibid. The judge then explained to the jurors that they could not have the reports because they had not been marked into evidence. Ibid.
In finding the judge's response improper, we explained:
We are unable to tell what the jury wanted from its cryptic request. We cannot tell if the judge correctly concluded that the jury
wanted to see the actual police report and Grand Jury testimony, and therefore correctly instructed the jurors that they were not entitled to see these documents. Nor can we determine if the jury simply wanted that part of the victim's cross-examination read back in which he admitted to the inconsistencies between his trial testimony and his pretrial declarations. There might even have been a different reason, not divined by us, why the jury sent its ambiguous message. . . . The trial judge should not have assumed the jury's meaning.
[Id. at 341-42.]
Here, as in Middleton, the trial judge was obliged to do more than simply answer the jury's question in the negative. He should not have assumed the jury's meaning. Rather, he was required to read the jury's question with care to determine precisely what was sought. See Parsons, supra, 270 N.J. Super. at 221. Thus, as defense counsel requested, the judge here should have made further inquiry of the jury to determine if what they were asking for was, in effect, a read back. The failure to do so was error, Middleton, supra, 299 N.J. Super. at 30-32; Graham, supra, 285 N.J. Super. at 341-42, and that error, as we said in Parsons, supra, 270 N.J. Super. at 225, "undermines our confidence that the deliberative process produced a just result." Indeed, the jury was essentially deprived of the right to review what it may have believed was critical evidence.
IV
Because a new trial is required for the reasons set forth above, we need not discuss defendant's remaining arguments, except to observe the following.
In Point III, defendant argues that the trial judge erred in permitting evidence of the identification of defendant made by Lampty at the showup that occurred quickly after the robbery. We find insufficient merit in defendant's argument to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only that the judge applied the correct legal standards at the conclusion of the Wade hearing and rendered findings of fact that are entitled to our deference. State v. Locurto, 157 N.J. 463, 470-71 (1999).
In Point IV, defendant contends that the trial judge erred in permitting Detective Costello to testify about Gray's description of defendant. Defendant argues, for the first time on appeal, that this testimony constituted inadmissible hearsay. Although the matter is capable of being repeated at the new trial we have ordered, we will not consider the issue further because if there is an attempt to elicit this testimony at the future trial, the trial judge will presumably have the benefit of a defense objection. The matter should first be examined in that fashion rather than through our consideration of the issue in advance of the new trial that is now required.
For reasons similar to those relating to defendant's Point IV, we decline to consider defendant's Point V, in which defendant argues that the judge erred in failing to instruct the jury on the lesser-included offense of receiving stolen property. The record reveals that defendant first requested such a charge but later withdrew the request. We will allow the parties to again decide what they will and will not request by way of lesser-included offenses when the jury is charged in the next trial rather than attempt to mandate what must be or need not be charged in the forthcoming new trial.
In Point VII, defendant combines two arguments. We rejected the first -- that the instruction regarding defendant's decision not to testify was flawed -- by reference to our holding in Miller, supra, 411 N.J. Super. at 533. The second aspect includes an argument that the jury instructions regarding Lampty's showup identification of defendant were inadequate. The judge followed the Model Jury Charge in this regard but defendant contends that the judge should have also put the language of the charge in context for the jury by tailoring the charge to the parties' specific contentions. We find no merit in this argument but we also recognize that the matter may be revisited at the forthcoming new trial.
Lastly, as mentioned earlier, in light of our disposition of the appeal, we need not consider the argument advanced by defendant in Point VI, that the verdict was against the weight of the evidence, or the argument contained in Point VIII, that the sentence imposed was excessive.
Reversed and remanded for a new trial. We do not retain jurisdiction.