State v. Humfrey A. Musa (073268), 120 A.3d 214

Background

Defendant Humfrey Musa was tried for second-degree robbery based on eyewitness ID and recovered cash; jury deliberated Feb 2–4, 2011.
At end of first-day deliberations the jury sent a note: “Still undecided. What do we do now?” and asked, among other things, “Can a particular juror be excused from the case?”
The court told jurors a juror can only be excused for a personal reason (illness, emergency) and alternates exist; jurors were told to raise issues the next morning; none did.
The next morning Juror No. 2 failed to appear; after roughly two hours of attempts to locate her, the trial court, over defense objection, seated an alternate under Rule 1:8-2(d)(1).
The reconstituted jury deliberated ~1 hour 50 minutes and returned a guilty verdict; the trial court denied defendant’s motion for a new trial based on the substitution.
The Appellate Division reversed, finding the court should have inquired whether the absence related to deliberations; the Supreme Court reversed the Appellate Division and reinstated the conviction, remanding only the unresolved identification-charge issue.

Issues

Issue	State's Argument	Musa's Argument	Held
Whether a deliberating juror’s unexplained failure to return permits substitution under Rule 1:8-2(d)(1) without first questioning the jury	Court may substitute an alternate after reasonable attempts to locate juror; inquiry risks intruding into deliberations and is unnecessary when juror is absent	The jury note about excusing a juror suggested potential deliberation-related conflict; court should have asked jurors whether absence related to that note before substituting	Absence constituted an "inability to continue"; substitution was permissible after reasonable efforts to locate juror; trial court did not abuse discretion
Scope and limits of any permissible inquiry into jury when a juror is missing	Any inquiry must be narrowly tailored to personal reasons only; broader questioning risks exposing deliberations	Needed at least limited questioning to ensure absence was personal and not deliberation-related	Inquiry, if used, must be narrowly circumscribed to elicit only personal reasons and avoid revealing voting inclinations; here, not required and omission was not reversible
Whether deliberations had progressed too far to permit substitution	Court evaluated timing and found deliberations had not progressed to the point of making substitution futile	Argued substitution could taint deliberations if jurors had already formed conclusions	Deliberations were early (one afternoon), not so advanced to preclude substitution
Whether trial court’s failure to give an identification charge requires relief (unresolved by trial court)	State did not prevail below on this; remanded for Appellate Division to address	Musa had argued identification was a significant issue and jury should have been charged	Supreme Court remanded to Appellate Division to decide this separate issue

Key Cases Cited

State v. Jenkins, 182 N.J. 112 (2004) (restrictive interpretation of "inability to continue" to protect deliberative independence)
State v. Ross, 218 N.J. 130 (2014) (limits on inquiry to protect confidentiality of jury deliberations)
State v. Williams, 171 N.J. 151 (2002) (permitting juror removal for personal financial hardship; abuse-of-discretion review)
State v. Valenzuela, 136 N.J. 458 (1994) ("unable to continue" applies to personal, non-deliberation-related circumstances)
State v. Hightower, 146 N.J. 239 (1996) (juror substitution only when record shows juror’s inability to function is personal and unrelated to deliberations)
State v. Guytan, 968 P.2d 587 (Ariz. Ct. App. 1998) (substituting juror who failed to appear for second day of deliberations not error)