State v. Khalid Mohammed(075901), 141 A.3d 243

Defendant Khalid Mohammed was tried for aggravated assault on a police officer and resisting arrest after a bar fight; jury convicted him of simple assault and resisting arrest.
After jury selection, the prosecutor reported Juror 14 appeared to be sleeping during the court’s lengthy pretrial instructions; the judge said he would repeat instructions and follow up the next week but did not do so.
At trial’s end the jury charge was given in four parts; after the final (post-lunch) part defense counsel stated she observed Juror 14 sleeping during the substantive charge (but did not identify the specific portion or request relief at that time).
The judge, based on his personal observations, found the juror had eyes closed intermittently but appeared attentive and allowed him to continue; jurors received written copies of the charge for deliberations.
Defendant moved for a new trial arguing juror sleeping prejudiced his right to mentally competent jurors; the trial court and Appellate Division upheld the conviction.
The New Jersey Supreme Court affirmed, holding that a judge’s contemporaneous, adequately explained finding that a juror was alert ends the inquiry; if the judge did not personally observe attentiveness, the judge must conduct individual voir dire and, if asleep during a consequential part, take corrective measures.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether defendant waived claim that juror sleeping denied right to mentally competent jurors	State: defendant failed to press for relief at trial and thus waived	Mohammed: objected immediately after charge; not strategic waiver	No waiver; issue preserved and reviewed for harmful error
When must a trial judge inquire into alleged juror sleeping?	State/AG: judge has discretion; if judge personally observed juror awake, no voir dire needed	Mohammed: court should have held a hearing/voir dire like in Reevey/Burks	If judge personally observed and explains observations on record, inquiry ends; otherwise conduct individual voir dire
Whether sleeping during pretrial instructions required remedial action	State: pretrial instructions were inconsequential; no prejudice shown	Mohammed: any sleep could have prejudiced trial	Sleeping during nonconsequential pretrial instructions not prejudicial here; no relief required
Whether written jury instructions cure missing oral charge	State: written charges are relevant to harmlessness	Mohammed: written copies cannot substitute for oral charge; inadequate cure	Written copies alone are insufficient to cure inattention during a consequential part of the oral charge

State v. Reevey, 159 N.J. Super. 130 (App. Div. 1978) (trial judge should question alleged sleeping juror and consider remedial measures)
State v. Burks, 208 N.J. Super. 595 (App. Div. 1986) (judge should ascertain if jurors were sleeping and consider corrective action)
State v. Glover, 230 N.J. Super. 333 (App. Div. 1989) (trial judge’s personal observation that juror appeared awake may render further inquiry unnecessary)
State v. Scherzer, 301 N.J. Super. 363 (App. Div. 1997) (defense may decline corrective measures; court’s response to sleeping juror claims examined)
State v. Lindsey, 245 N.J. Super. 466 (App. Div. 1991) (written jury instructions are not an adequate substitute for oral charge when cure is required)
Tanner v. United States, 483 U.S. 107 (1987) (defendant’s right to an impartial and mentally competent tribunal discussed)
Jordan v. Massachusetts, 225 U.S. 167 (1912) (right to mentally competent tribunal articulated)
Panko v. Flintkote Co., 7 N.J. 55 (1951) (duty of judge and counsel to ensure jurors’ mental and physical capacity)
United States v. Holder, 652 F.2d 449 (5th Cir. 1981) (trial court’s observation that juror was not asleep justified not conducting voir dire)