Opinion
DOCKET NO. A-2237-12T2 DOCKET NO. A-4548-12T2
07-18-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. KEVIN LLOYD, a/k/a CHRIS BARRETT, a/k/a DEVIN KEITH, Defendant-Appellant. STATE OF NEW JERSEY, Plaintiff-Respondent v. CHRISTOPHER CADE, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant Kevin Lloyd (Peter B. Meadow, Designated Counsel, on the brief). Joseph E. Krakora, Public Defender, attorney for appellant Christopher Cade (Alison Perrone, Designated Counsel, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Andrew R. Burroughs, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the briefs).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Ashrafi and Leone.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 11-02-0339.
Joseph E. Krakora, Public Defender, attorney for appellant Kevin Lloyd (Peter B. Meadow, Designated Counsel, on the brief).
Joseph E. Krakora, Public Defender, attorney for appellant Christopher Cade (Alison Perrone, Designated Counsel, on the brief).
Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Andrew R. Burroughs, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the briefs). PER CURIAM
Defendants Kevin Lloyd and Christopher Cade were tried and convicted together. They appeal, primarily arguing that, once the trial court removed a juror, it could not substitute an alternate juror and restart deliberations. Under Supreme Court precedent, we must reverse and remand.
I.
The trial evidence can be briefly summarized. On November 22, 2010, plainclothes officers responded to a report of drug activity around a public housing facility in Newark. Detective Euletta Rainey observed Lloyd and Cade approach Rakeem Beatty and Wali Nichols in the playground. Rainey saw Lloyd and Cade hand Beatty cash in exchange for small objects. Nichols then retrieved a small object from nearby bushes and gave it to Cade, who drove away with Lloyd in a Toyota. Rainey later found in the bushes glassine envelopes stamped with a logo and containing heroin. Other officers stopped the Toyota containing Lloyd and Cade, and found similarly-stamped glassine envelopes of heroin.
The grand jury issued a twelve-count indictment. Counts One through Eleven each charged only Beatty and Nichols, alleging that they possessed heroin, possessed heroin with intent to distribute (PWID), conspired to possess and PWID, PWID and distributed within 1,000 feet of a school and 500 feet of a public housing facility, and distributed heroin to Lloyd and Cade. Lloyd and Cade were charged only in Count Twelve, with third-degree possession of heroin. N.J.S.A. 2C:35-10(a
Beatty died before trial. Trial against Nichols, Lloyd, and Cade commenced on July 5, 2012. The State's first witness, Detective Rainey, testified for most of that first day and about a third of the second day, July 10. The jury heard other testimony during the remainder of July 10 and part of July 11, and then heard closing arguments and jury instructions on July 12. On Friday, July 13, the trial court concluded its jury charge, selected the alternate juror, and sent the remaining jurors out to deliberate before lunch. After lunch, the jurors were sent home early when Juror #8 sent a note saying he was feeling sick.
On Monday, July 16, the court granted the jury's request to play back the entire recorded testimony of Detective Rainey. The first part of the testimony was played back that day.
On July 17, the jury heard the rest of the playback, and then resumed deliberations. Soon thereafter, they sent a note stating that they were all in agreement on Count Twelve, but were deadlocked on Counts One through Eleven. Counsel for Lloyd and Cade asked the court to consider taking a partial verdict.
The court instead reminded the jurors that "you really haven't been deliberating all that long, especially in light of the fact that we just spent approximately, what? Four hours or so maybe more, playing back the testimony of the state's [prime] witness." The court told the jury to resume their deliberations, and gave them the jury instruction which had been approved in State v. Czachor, 82 N.J. 392, 405 & n.4 (1980), and incorporated in Model Jury Charge (Criminal), "Judge's Instructions on Further Jury Deliberations" (Jan. 14, 2013).
Shortly thereafter, the jury sent a note asking for a lunch break, followed immediately by another note stating: "Need to discuss, address issues that have arisen during the course of deliberations. Very important. Juror conflict." Nichols' counsel asked for a mistrial, but counsel for Lloyd and Cade asked the court to inquire further into the problem.
After lunch, at the request of the court, the jurors wrote a more specific note stating: "There have been discussions that a juror has researched details of the case and it may have swayed . . . [that juror's] discussions regarding the case. How do we handle?"
As suggested by counsel for Lloyd and Cade, the trial court told the jurors it would question each juror individually. In the individual questioning, the jurors similarly described the incident, which occurred after the playback.
Multiple jurors reported that Juror #7 and Juror #8 began an emotional argument. Most of the jurors heard Juror #7 say that she would punch Juror #8 in the nose, which Juror #8 threatened to report to the court. All jurors heard Juror #7 then threaten to report that Juror #8 had told her he went on the internet and did research. Juror #5 heard Juror #7 say Juror #8 was "googling" and "looking up names." Most jurors stated, and the trial court found, that Juror #7 told the other jurors that Juror #8 had changed his position based on his research. After these statements, the jury's discussions soon stopped and the foreperson sent the "juror conflict" note.
All jurors agreed, and the court found, that there was no disclosure or discussion of what if anything Juror #8 had found in his research. All of the jurors, except Juror #5, who was not asked, denied that the comments or incident would in any way affect their ability to properly consider the evidence and to engage in deliberations fairly and impartially.
The only significant factual dispute was between Juror #7 and Juror #8 about the events before the incident. Juror #7 reported that "last week" Juror #8 told her he had gone on the internet the previous night and "researched [everybody's] names." Juror #8 claimed that he did not do any research and that he did not tell Juror #7 that he had engaged in research. The court found Juror #8's claims "totally incredible."
All defense counsel requested a mistrial. On July 18, after considering the facts and case law overnight, the trial court ruled that there was "absolutely no basis in this case to declare a mistrial." The court found that, "clearly, there's been no taint on the jury by virtue . . . of either [Juror #8's] alleged activities in conducting some research on the internet nor by virtue of the comments made by [Juror #7] during the course of deliberations with reference to the alleged activities of" Juror #8. The court dismissed Juror #8, and found the remaining jurors had "not been compromised or affected in any way in their ability to continue deliberations or to resume or to restart deliberations . . . fairly and impartially."
The court empanelled the alternate juror, and instructed the jurors by reading and elaborating on the Model Jury Charge (Criminal), "Judge's Instructions When Alternate Juror Empaneled After Deliberations Have Begun" (Jan. 14, 2013). The court told the reconstituted jury that it should not consider why Juror #8 had been excused, and that:
Each member of the deliberating jury must set aside and disregard whatever may have occurred and anything which may have been said in the jury room following my final instructions to you at the end of the case. You must give no weight to any opinion or any comments expressed by juror number 8 . . . during the course of deliberations before he was excused.
The court emphasized that the empanelling of the alternate juror meant that "you are now a new jury and you must start your deliberations over again from the beginning." The court explained "that means no short cuts. You have to assume that nothing has happened here and go back and start afresh. That's because the alternate juror has no knowledge of any earlier deliberations." The court added:
Now, if the jury arrived at any decisions or conclusions with reference to any count of the indictment, again, all of those conclusions, decisions, et cetera must be totally disregarded. You have to go back and start from the beginning as if nothing had transpired during the course of your deliberations from the point in time where I gave you my final instructions to today. This is a new beginning. Start all over again, okay?
The court then repeated the Czachor instruction, and the reconstituted jury went to deliberate. The jury asked for a clean verdict sheet. The jury later requested and received a rereading of the instructions defining constructive and joint possession. After lunch, the jurors continued deliberations until they asked to "close for the day," mentioning that "[s]ome but not all jurors feel that we will not be able to reach a unanimous decision." The court did not view this as a deadlock, and denied defense mistrial requests.
On July 19, the jurors sent a note stating that they were deadlocked on Counts One through Eleven, but were unanimous on Count Twelve. The foreperson stated there was no possibility that further deliberations would result in a unanimous verdict on Counts One through Eleven. All but one juror agreed, and then so indicated on the verdict sheet. The court declared a mistrial on Counts One through Eleven, and received the jury's unanimous verdict that both Lloyd and Cade were guilty on Count Twelve.
On September 20, 2012 and February 23, 2013, respectively, the court sentenced Lloyd and Cade each to three years in prison, with Lloyd's sentence to run concurrently with an open indictment. Lloyd and Cade appealed separately. Their appeals were calendared back to back, and are consolidated only for the purposes of this opinion.
Lloyd's appeal raises the following argument:
THE TRIAL COURT DEPRIVED DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO TRIAL BY A FAIR AND
IMPARTIAL JURY BY DENYING DEFENDANT'S REQUEST FOR A MISTRIAL AND REPLACING A JUROR AFTER THE JURY INDICATED THEY WERE DEADLOCKED ON COUNTS 1 TO 11 AND HAD REACHED A DECISION ON COUNT 12 OF THE INDICTMENT.
Cade's appeal raises the following arguments:
POINT ONE
THE TRIAL COURT DEPRIVED DEFENDANT OF HIS RIGHT TO TRIAL BY A FAIR AND IMPARTIAL JURY BY REFUSING TO DECLARE A MISTRIAL AFTER A DELIBERATING JUROR CONDUCTED INTERNET RESEARCH ABOUT THE DEFENDANTS.
POINT TWO
NUMEROUS INSTANCES OF PROSECUTORIAL MISCONDUCT DEPRIVED DEFENDANT OF HIS RIGHT TO A FAIR TRIAL.
(Partially Raised Below).
II.
In reviewing the juror misconduct issue raised in defendants' appeals, we must hew to our standard of review. Because "the trial court is in the best position to determine whether the jury has been tainted," "[t]he abuse of discretion standard of review should pertain when reviewing such determinations of a trial court." State v. R.D., 169 N.J. 551, 559 (2001). However, "[t]he discretion of trial courts to substitute jurors is governed by Rule 1:8-2(d)," State v. Corsaro, 107 N.J. 339, 348 (1987), which "may be used only in limited circumstances," State v. Hightower, 146 N.J. 239, 253 (1996).
We must also consider the Supreme Court's recent decision in State v. Ross, ___ N.J. ___, No. A-67 (June 24, 2014, corrected July 3, 2014) (slip op. at 1-3). There, after an eight-day trial and five days of deliberations, the jury advised the judge that it was "'unable to reach a unanimous decision on any count.'" Id. at 3-5. The judge gave the Czachor instruction. Id. at 5. The next morning, without objection, the judge excused an ill juror, substituted an alternate juror, and gave the Alternate Juror Instruction. Id. at 6-8. After seventeen hours of deliberations, the reconstituted jury convicted the defendants of all charges. Id. at 8. We reversed the convictions based on State v. Banks, 395 N.J. Super. 205 (App. Div.), certif. denied, 192 N.J. 598 (2007).
The Supreme Court reinstated the convictions. Ross, supra, slip op. at 29-30. The Court held that the trial court properly gave the Czachor instruction, and "that the trial court's decision to substitute an alternate for the ill juror after the deadlock had been announced did not constitute plain error." Id. at 12-16, 25. The Court overruled our decision in Banks "to the extent that it generally barred trial courts from substituting a juror and directing new deliberations, by virtue of the fact that the original jury had reached an initial impasse and was charged in accordance with Czachor." Id. at 28-29.
Here, after two days or less of actual deliberations, the original jury told the trial court they were deadlocked on Counts One through Eleven, and received the Czachor instruction. Those facts alone are insufficient under Ross to prevent the substitution of an alternate juror for an excused juror. However, other facts distinguish this case from Ross.
A.
First, this case does not involve "the substitution of an alternate for a juror excused for personal reasons unrelated to the case." Ross, supra, slip op. at 19. Rather, Juror #8 was removed after he improperly did research on the case, and then lied about it to the trial court. We initially consider whether Juror #8's conduct constitutes an "inability to continue" under Rule 1:8-2(d)(1).
Rule 1:8-2(d)(1) provides: "if at any time after submission of the case to the jury, a juror dies or is discharged by the court because of illness or other inability to continue, the court may direct the clerk to draw the name of an alternate juror to take the place of the juror who is deceased or discharged." The Supreme Court has "restrictively interpreted the phrase 'inability to continue' in Rule 1:8-2(d)(1) to protect a defendant's right to a fair jury trial, forbidding juror substitution when a deliberating juror's removal is in any way related to the deliberative process." State v. Jenkins, 182 N.J. 112, 124 (2004). "Nor may the standard be employed to remove a deliberating juror where the record reveals that the juror's problems are related to both personal circumstances and factors arising from the juror's interactions with other jurors. In other words, the reason must be exclusively personal." Hightower, supra, 146 N.J. at 255 (citation omitted).
In Hightower, a juror overheard extraneous information about the victim and repeated it to the other jurors. Id. at 248. The Court ruled that such "misconduct does not fall within the scope of Rule 1:8-2(d)'s inability-to-continue standard. That standard requires exclusively personal circumstances to justify removal of a deliberating juror. [The juror] did not satisfy that standard because his misconduct was related to the case and to his interactions with the other jurors." Id. at 255. Thus, "[w]hen a jury is exposed to extraneous information after deliberations have begun, a mistrial will almost always be required." Id. at 264.
The Supreme Court subsequently ruled that a deliberating juror who is biased may be removed and potentially replaced under Rule 1:8-2(d)(1). See Ross, supra, slip op. at 22-23, 28 (citing Jenkins, 182 N.J. at 130-31). In Jenkins, a juror said that she could not convict a defendant of her children's age and race regardless of the facts, and "that she could not obey her sworn oath and follow the court's instructions on the law." Jenkins, supra, 182 N.J. at 119, 127-28. The Court ruled that "[n]o juror has the right to disregard a court's instructions." Id. at 128. The Court concluded that "a deliberating juror who expressly states that she will not obey her oath and follow the law, as instructed by the court, is unable to continue serving as a juror and may be substituted with an alternate juror under Rule 1:8-2(d)(1)." Id. at 137.
Here, the trial court found that Juror #8 had disregarded the court's instructions prohibiting research, violated his oath to decide the case solely on the trial evidence, and lied about it, suggesting his inability to follow the law would continue. For these reasons, the trial court properly determined that he could not continue to sit as a juror. State v. Negrete, 432 N.J. Super. 23, 32-33 (App. Div. 2013) (reversing where the trial court allowed a juror to continue to participate after he had revealed extraneous information about the defendant to the other jurors), certif. denied, 217 N.J. 294 (2014).
Although Juror #8's research into extraneous information violated judicial instructions and his oath, as in Jenkins, the other jurors learned that the juror had obtained extraneous information, as in Hightower. Thus, Juror #8's misconduct was not "exclusively personal" and was related to "the juror's interactions with other jurors." Hightower, supra, 146 N.J. at 255.
Moreover, Juror #8 got in a heated argument with a female juror who threatened to punch him in the nose, and he informed the court he could not "go back into the jury room with a woman that's threatening bodily harm against me." Such problems between jurors do not "permit a substitution under Rule 1:8-2(d)(1)." Ross, supra, slip op. at 18-19 (quoting State v. Williams, 171 N.J. 151, 163 (2002)).
Thus, we are bound by the Supreme Court's decision in Hightower to find that Juror #8's misconduct was not a valid reason for substitution of an alternate juror during deliberations under Rule 1:8-2(d)(1). Neither Ross nor Jenkins overrules Hightower's holding. See Ross, supra, slip op. at 17-18; Jenkins, supra, 182 N.J. at 131; see also Negrete, supra, 432 N.J. Super. at 33.
We recognize that a mistrial prior to deliberations "is not necessary in every instance where it appears an individual juror has been exposed to outside influence." R.D., supra, 169 N.J. at 559. In such situations, the Court gives the trial court discretion "to consider the gravity of the extraneous information in relation to the case, the demeanor and credibility of the juror or jurors who were exposed to the extraneous information, and the overall impact of the matter on the fairness of the proceedings." Ibid. (removing a juror who knew extraneous information related to the case but allowing the trial to continue). "Application of that [discretionary] standard respects the trial court's unique perspective [and we] traditionally have accorded trial courts deference in exercising control over matters pertaining to the jury." Id. at 559-60. That is not the case after deliberations commence, however, under Hightower's reading of Rule 1:8-2(d)(1).
B.
Even if Juror #8's misconduct was akin to the bias in Jenkins, the court after removing the juror would be required to "determine whether the circumstances permit substitution with an alternate." Jenkins, supra, 182 N.J. at 129. It is inappropriate to reconstitute the jury with an alternate juror if the removed juror's misconduct had "irremediably infected the jury" or "poisoned" the deliberative process. Id. at 130-31.
Here, there were grounds for concern. First, Juror #7's heated dispute with Juror #8, including her threat to punch him, played out before the entire jury. See Ross, supra, slip op. at 26 (noting the absence of evidence that "the juror's inability to continue derived from . . . her discussions with her colleagues," "that she had confronted hostile or intractable colleagues, or that disputes had arisen in the jury room"). Significantly, as a result of the confrontation between Jurors #7 and #8, the rest of the original jury had learned that Juror #8 had researched the case on the internet. At least two jurors knew that Juror #8 had "googled" the names, which suggested the nature of the information.
Cade's lawyer said he tried googling the names of Nichols, Beatty, and Cade and "found all sorts of information about their criminal records." The trial court replied, "I'm sure you would."
Most importantly, the other original jurors knew that Juror #8's research caused him to change his position, and presumably how his vote had changed.
"[W]here the jury is exposed to information not in evidence, the first question is whether the information 'could have a tendency to influence the jury in arriving at its verdict in a manner inconsistent with the legal proofs and the court's charge.'" Negrete, supra, 432 N.J. Super. at 34 (quoting Panko v. Flintkote Co., 7 N.J. 55, 61 (1951)). Knowledge that another juror had changed his vote based on his research about the case arguably has that tendency, even if the jurors did not know specifically what the research had uncovered.
The trial court relied on assurances by other jurors that the incident would not affect their impartiality. "Findings based upon a judge's assessment of a juror's testimony and feel of the case generally are entitled to deference." Id. at 32. However, it can be "error to rely on the jurors' professions of ability to serve no matter how sincere." Id. at 33.
As in Jenkins, we need not decide whether the trial court abused its discretion in finding the jury untainted by the revelation of Juror #8's research and its effect on his verdict. As set forth below, Supreme Court precedent compels the conclusion "that the jury deliberations had advanced to the point that substitution with an alternate juror was not an acceptable option." Jenkins, supra, 182 N.J. at 131.
C.
Here, the original jury had announced that it had reached a verdict on Count Twelve, the only count charging Lloyd and Cade and the only count on which the reconstituted jury convicted. By contrast, in Ross the Court emphasized that the original jury "did not announce or imply that it had rendered a partial verdict or that it had otherwise 'reached a determination of guilt or innocence.'" Ross, supra, slip. op. at 26 (quoting State v. Williams, 171 N.J. 151, 169 (2002)). Indeed, the Ross Court noted, "[n]othing in the original jury's communications with the trial court suggested that any juror had reached a determination on a factual or legal issue." Id. at 25-26.
Further, the Court in Ross reaffirmed its decisions in Jenkins, Valenzuela, Williams, and Corsaro. Id. at 20-23. From those cases, the Court derived "several principles to guide a trial court's determination as to whether a reconstituted jury will meaningfully deliberate." Id. at 24. One principle was that "if a partial verdict has been rendered, or the circumstances otherwise suggest that jurors have decided one or more issues in the case, the trial court should not authorize a juror substitution, but should declare a mistrial." Ibid. (citing Jenkins, supra, 182 N.J. at 132-33, and Corsaro, supra, 107 N.J. at 352-54).
In Corsaro, the Court held "that substitution of a juror after the return of partial verdicts [on three counts] for the purpose of continuing deliberations in order to reach final verdicts on remaining counts was plain error." Corsaro, supra, 107 N.J. at 354. The Court reasoned that:
[Where] the jury has made actual fact-findings or reached determinations of guilt or innocence, the new juror is likely to be confronted with closed or closing minds. In such a situation, it is unlikely that the new juror will have a fair opportunity toDespite proper instructions and the fact that the jury had not yet deliberated on the related counts, the Supreme Court ruled that "the likelihood that deliberations would truly 'begin anew' was so remote, in our opinion, as to foreclose juror substitution." Id. at 354.
express his or her views and to persuade others. Similarly, the new juror may not have a realistic opportunity to understand and share completely in the deliberations that brought the other jurors to particular determinations, and may be forced to accept findings of fact upon which he or she has not fully deliberated.
[Id. at 352.]
In Jenkins, before the removal of the biased juror, she revealed that "the remaining jurors were prepared to convict defendant." Jenkins, supra, 182 N.J. at 131. Despite the lack of a formal verdict, the Supreme Court similarly found that "the die appears to have been cast. There was little prospect that the original jurors would have been capable of honoring an instruction to begin deliberations anew or that the alternate would not have felt pressured to fall in line with the already committed eleven jurors." Id. at 133. The Court also disapproved a decision allowing an alternate juror to replace a juror exposed to extraneous information after the jury "had announced its verdict to convict," because the Court could "not square that holding with [its] decision in Corsaro, supra. Id. at 133 n.2 (overruling in part State v. Holloway, 288 N.J. Super. 390 (App. Div. 1996)).
Here, the original jury had announced that it had reached a verdict on Count Twelve. Although the jury had not revealed or returned its verdict, under Corsaro and Jenkins the jury's deliberations "had clearly progressed to the point at which jurors had reached final determinations on factual and legal issues, thus precluding meaningful deliberations by a reconstituted jury." Ross, supra, slip op. at 29 n.6. We are thus compelled to reverse the convictions.
Because the original jury had reached a verdict, we reject the State's argument based on the length of the reconstituted jury's deliberations here. The reconstituted jury deliberated for an afternoon and part of the next morning before reaching a verdict on Count Twelve. By contrast, "[t]he newly reconstituted jury returned a verdict in twenty-three minutes" in Jenkins, supra, 182 N.J. at 133. However, Jenkins treated the brevity of deliberations by the reconstituted jury merely as "lend[ing] credence to the argument that minds were closed when the alternate joined the deliberations," ibid., rather than as a post hoc precondition for applying the rule of Corsaro and Jenkins. Cf. State v. Williams, 377 N.J. Super. 130, 150 (App. Div.) (relying on the brevity of the reconstituted jury's deliberations in reversing under Jenkins), certif. denied, 185 N.J. 297 (2005).
It could be argued that Corsaro and Jenkins impose a "bright line" rule similar to that rejected by the Supreme Court in Ross, supra, slip op. at 21. See id. at 8 (Cuff, J., dissenting). Such a rule is arguably contrary to the general view that "the trial court is in the best position to determine whether the jury has been tainted," see R.D., supra, 169 N.J. at 559, and to the normal presumption that juries, including reconstituted juries, follow the court's instructions. Ross, supra, slip op. at 26 (citing State v. Winder, 200 N.J. 231, 256 (2009)). Further, "'[d]eclaring a mistrial imposes enormous costs on our judicial system, from the expenditure of precious resources in a retrial to the continued disruption in the lives of witnesses and parties seeking closure.'" Id. at 17 (quoting Jenkins, supra, 182 N.J. at 124). However, Ross reaffirmed the rule of Jenkins and Corsaro, under which "judicial economy had to bow to defendant's fair trial rights and a mistrial should have been declared." Jenkins, supra, 182 N.J. at 133. We must follow that rule.
We reverse the judgments of conviction of Lloyd and Cade, and remand for further proceedings. Accordingly, we need not address Cade's claims of prosecutorial misconduct. We do not retain jurisdiction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELATE DIVISION