*1 assault, judgment of convic- second-degree sexual correction of the third- finding guilt to reflect lesser-included tion assault, resentencing pursuant to Nótale degree aggravated third-degree In all other kidnapping and terroristic threats. is affirmed. respects, defendant’s conviction part/reversal part/remandmewt For —Chief affirmance ALBIN, LONG, LáVECCHIA, ZAZZALI and Justices Justice WALLACE, and HOENS —7. RIVERA-SOTO
Opposed—None. PLAINTIFF-APPELLANT, JERSEY, v. ROBERT NEW STATE OF FIGUEROA, A. DEFENDANT-RESPONDENT. April Argued January 2007. 2007 Decided *2 Liebman, Prosecutor, argued Sara B. Assistant the cause for (Theodore Romankow, appellant County Prosecutor, J. Union attorney; Prosecutor, Kaflowitz, Steven J. Assistant of counsel brief). and on the Jr.,
Anthony Pope, argued respondent. J. cause opinion of the Court. HOENS delivered Justice govern courts guidelines In trial faced we announced juries and how to direct that had questions with the whether their delibera- reported themselves to be deadlocked continue Czachor, v. tions. State generally then utilized
particular, we concluded
coercive,
inherently
trial
to use instead
and we directed
courts
pressuring
form of
that would avoid
an alternate
surrendering
convictions”
dissenting jurors into
their “honest
merely
guilt
a unanimous verdict.
Id.
or innocence
reach
about
supported
I.
A. testimony begin analysis with a We our recitation presented during evidence trial.1 Samir Pretlow and two of friends, Davis, Phillip his Austin and Willie went to a bar in evening February Elizabeth one point 2003. At during some night early morning day, they hours of the next friend, Figueroa encountered defendant Robert and his co-defen- Colon, Jeffrey Davis, dant According at the bar. defendant and bumped Pretlow engaged each other couple and then in “a [of] why stare-downs.” Defendant “looking asked Pretlow he was funny” [defendant] “go Pretlow offered to outside” about it. Defendant, Colon, Pretlow, Austin, and, and Davis all went outside bar, group as the walked from began defendant and Pretlow argument. heated away Davis and Colon walked from the other three, engaging in a they conversation of their own. As were returning group, Davis saw Colon walk nearby to his car, parked gray Intrepid, described as a and he heard defendant “body” threaten to one of the others to “show [them] it’s not a game.” Davis testified that he and the others understood this be a threat defendant to kill someone. Davis,
According to Colon gun then handed a to defendant who pressed it to response, Pretlow’s head. began Pretlow struggle with defendant gun punched control of the defendant three times in doing the face attempt- while so. Colon apart, ed to break the two urged while Davis and Austin Pretlow to leave because were unarmed. After defendant and Pret- separated, low were gun, pointing defendant raised the it at Davis. street, up As ran Davis being he heard shots fired. *4 Austin was hit once in leg the left ground. and fell to the produced Forensic evidence at trial demonstrated that Pretlow was hit leg three times in the and once in the chest. He died the day next hospital. at the 1Although relating investigation facts to the events specific and the do not bear on our this directly analysis, illustrates that the summary was faced significant
with issues of credibility. Banos, nearby gunfire, At a resident of a the sound Jose thought a building, had thrown a rock at awoke. He that someone window, thought him that car but his wife told she was being out of gunshots fired. Banos looked his window sound man, noting thin a tall thin man and a shorter that the saw object in his He heard the one had a black hand. testified he looking again had him after had sound that awakened he finished out of the window. being police responded Elizabeth to a call shots
Two officers They watching an dispersing left a crowd that was fired. after women, argument few two but returned a unrelated between they by police other officers later when were alerted two minutes nearby hospital with that Pretlow and Austin had arrived a they Indians gunshot wounds. Near the scene found a Cleveland they Pretlow cap, which later learned matched the shirt baseball addition, was wearing. had the officers noticed that there been Hyundai parked in a hole and a shattered rear window bullet Banos, they belonged three they found discovered wristwatch, a They spent casings near the car. also found shell Hyundai casing blue Polo headband and a fourth shell between the found parked “projectiles” car. were later and another Two lodged Hyundai.2 inside of the gone hospital had were police two other officers who Pretlow, surgery undergoing
not he was able to interview because They attempted to regained he consciousness. from which never Austin, gave officers cooperative. was He interview who identity his from a names before learned five different false spoke hospital. Austin family member at the When officers, argument at the had been he first told them that the bar by were hit bullets two women and that he Pretlow between part fight. He told the officers when shots were fired as casings had all fired from demonstrated that the shell been testimony Expert gun single gun. recovered, Because the was not automatic expert projectiles also fired unable to were testify weapon. *5 shooter, identify telling he did
that was unable to them that he thought people know the shooter and involved were hospital out from of town. Austin was released from the later day. day,
The next Austin walked into the Elizabeth Police Station and told the desk officer that he had information about shooting. voluntarily gave Pretlow then He Detective Ismael typed, a statement Olivero about incident. His statement was him, by it, signed. explained reviewed and In he that there had given gun been “a and that Colon tussle” had defendant the Thereafter, defendant then used to shoot him and Pretlow. story, again changed telling investigator by Austin an his retained taped only defendant in he interview that knew that defendant had together. Pretlow words the bar and left told Austin investigator merely defense that he had assumed defendant trial, being was the shooter when he heard shots fired. At only Austin testified he could recall “a little commotion” among prior being running “females” In away. shot he was testimony, typed addition to Austin’s trial both the statement he gave police taped to the gave statement he to defendant’s investigator were into admitted evidence.
Davis, bar, gave who had also been Pretlow at the conflict- ing police investigators information to and defense as well. Davis appeared, voluntarily, first police headquarters told police that had shooting. he information about his state- ment, Davis identified defendant as the shooter and revealed that Davis had gun seen Colon retrieve the from his car and hand trial, however, defendant. Prior to gave Davis a written state- investigator ment to an single, for defendant. That consisted handwritten sentence in which he stated that he had not seen anything trial, shooting. at all the date of after Davis At given testimony had consistent with his first statement to the police, he given disavowed the written statement he had investigator. explained signed defense He that he that statement approached investiga- because he was on the street defendant’s *6 family tor, member’s house warning, outside of without for he statement city. wrote the another Davis testified of and of investigator he was afraid defendant because defendant’s against if defendant. he would do he testified what on the inconsisten- and Davis were cross-examined Both Austin testimony police their to their and statements cies between addition, investigator. each confronted In was and to defendant’s membership, on and examined their his criminal convictions with Pretlow, investigator, gang. in a Defendant’s along with street Austin, Foster, to and who had interviewed Davis David statement, As given conflicting also testified. had his whom each Davis, warning approached him Foster denied that he without for him and that Davis had reached out in the street testified addition, Foster that he his recantation. In testified volunteered taping his statement. spoke times with Austin before several Foster, feeling guilty According him that he Austin told “he was wrong Co-defendant thing to the Prosecutor.” Colon said the Rolo, manager, testify body shop Joseph an auto called shop repairs ear, Intrepid, for from gray his Colon’s February February contended that until 24. Colon therefore gun testimony had retrieved a to the effect that Colon Davis’s could not be correct. his and had handed it to defendant from car B. for first-de- Colon were indicted
Defendant and co-defendant (2), (of Pretlow), 2C:ll-3a(l), N.J.S.A N.J.S.A gree murder (of Austin), N.J.S.A 6; attempted first-degree murder 2C:2— 2C:ll-3a, 1; weapon an possession of a for second-degree 2C:5— 2C:39-4a; third-degree unlawful purpose, N.J.S.A. unlawful separate In indict- N.J.S.A. 2C:39-5c. handgun, of a possession ment, second-degree persons they charged certain were also with N.J.S.A. 2C:39-7b. weapons, Defendant and Colon not to have on together in a trial that commenced October were tried days testimony. of and included three full began p.m. Tuesday, deliberations 2:45 October jury charge, 2004. The initial consistent our with Model Jury Charges see Model (Criminal), Charge, Charge (1994), Final following included the instructions: judgment this verdict must of Now, considered of each and must you, represent jurors, be unanimous. It is with with to consult one another a view your duty, reaching agreement, if towards an can do so without own you violence any your judgment. individual Each must the case for but you decide do so yourselves, jurors. after an consideration of the evidence fellow only impartial your course deliberations do not hesitate reexamine own views your your change if are convinced are but do your you erroneous, opinions, and/or weight surrender honest convictions as to or evidence your solely effect of returning because mere opinion your purpose fellow verdict. added).] (emphasis [ *7 record, entirely
It is not from appears clear the but it jury by day p.m. ended its deliberations that 4:20 and returned to morning the courthouse to continue the approximately next at 9:00 appears jury a.m. It also that the was released for lunch from again p.m., they began noon until 1:30 after which to deliberate. day, shortly p.m., The same before 2:25 sent the court a advising unanimously agree note that “we cannot on the verdict.” The trial court did not ask the whether further deliberations Instead, result gave would a verdict. court following supplemental instruction: right
I to now, want tell that does not you, day one a deliberation make. go through it Sometimes takes time to the process. just And in to note I want to with for minute or response your speak a two. you to I want about the deliberation to be that speak process sure you fully just understand what is contemplated. things. It is a in which are process asked to do two You asked to you are listen being jurors accepting to is what said the other with a view by towards what you and at the hear, you same time are when it’s turn to asked, your to speak, speak persuading saying, with a view towards the others to what it are and works you realize, jurors when are able to It’s do both. not that difficult to do when what you it is a rational deliberative and it’s a of which are as process process you requested, saying, to listen what the others are to that you receive with an other mind, open hearing. in a frame mind to to words, receptive be what are persuaded you Ias when to Then, say, are also with a view you speak you speak towards persuading saying. to others what are you jurors ongoing is but functions when the are that, an Now, obviously, process, building building fashion, a block to and do that a block you able do both only facts out some rather basic and if where start with fashion, will, you simple you begin to other and talk about the evidence and you to move on from there facts thing other has been that, we satisfied with address, this, then are doing building if foundation, and are is a you will, what exists, you established and begin that to and when done then you’ve address, factual then foundation, you a us? What we and may What does this tell properly what does that mean? strong and what is a what are the basic facts infer from we’ve concluded reasonably we we draw that inference or is it not? Are should rational inference persuaded just dealing gone through with facts still that, when and only you’ve drawing get, elements of the offense then, from those facts do to the you inferences a reason- this element now, beyond has the State established and ask yourselves, throughout speaking listening it is both a all doubt, process able but juror to be listen with a view by each is to expected persuaded deliberation and juror stating at the and also time, be and what the hears the others may what persuading to speaking as to what is be said view towards others through begin go Through to that rational deliberation, you time. process build those blocks. nothing going got got got I on I to be here tomorrow, I to here Friday. long playing be here as as are so we will away Sunday, and Giants Saturday, through go to this process. it takes you keeping in mind I said both want so what I want but I do continue, you you I think if basic instructions that I delivered to you yesterday. now and earlier, deliberating jury being is asked of on that and what you focus you process that will be some assistance that, you. maybe, added).] (emphasis [ instruction, arguing immediately objected this Defendant failed remind the inappropriate trial court because their honest convictions” should not “surrender Referring language used merely to return verdict. clarify forceful,” *8 court the defendant asked the court as “too they the that would by explaining to comments underscored over and even actually for the remainder the week not be held verdict. if to return a unanimous failed the weekend part explain clarify, because the trial declined to The court instruc- charge generally back to the initial referred cautionary lan- appropriate all of the tions which had included specifically re- requested then that the court guage. Defendant initial instruction jury part of that the about the relevant mind court, however, concerning process of deliberations. the agree supple- refused to do so the not because court did that the inappropriate. mental was itself later, Approximately jury reported hour one the it had a verdict3 on reached all counts. As trial court the reviewed the polled jury questions, verdict sheet and the on all each the were finding unanimous in guilty defendant not of the murder of guilty Pretlow but of the aggravated lesser-included offense of manslaughter jury unanimously of Pretlow. The agreed also guilty attempted defendant was not of either aggravat- murder or However, polled ed assault Austin. when about the other Rather, charges, jury juror the was not unanimous. one dissented jury’s purported guilty charges posses- from on the verdicts weapon sion purpose possession for an unlawful and unlawful weapon. of a court The trial told that a non-unanimous verdict, legal vote was not a advised them their verdicts on charges other weapons accept- than the two offenses would be final ed as ... instructed to “continue deliberations jury] [the and advise court] [the when reached verdict on those charges.” inquire The court did not about whether additional new, provide any deliberations would be fruitful and did supplemental, or additional instructions. mistrial,
Both defendants moved for arguing jury’s response non-unanimous charges some of the demonstrated supplemental charge They had coercive. been reasoned juror openly expressed that because one had her dissent offenses, weapons apparent agreement her aggravated manslaughter charges only must have by pressure been motivated being to avoid held in denying deliberations all weekend. for a charges, motion mistrial as to all the trial court stated part: all, First of let me this bed observation put defense, obvious by appellate telling that the court somehow coerced the
purposes, by that was Figueroa, Because we address the issues raised defendant we will not only jury's charges against recite verdict on part his any co-defendant Colon.
229 I that tenor going and think the Saturday, tomorrow, Friday, Sunday. to be here close and live the of the circumstances up taken in totality of the when comments, word, to the written was to here, opposed with an observe opportunity not judgment told that one does day here. I them there no rush to required could of those and days, they and that we can be back here any make a deliberation a their deliberations reach could continue with feel comfortable they suggest had they of I didn’t days. at their leisure on those any decision come with a verdict today.4 back later, a twenty returned with Approximately minutes verdict, unlawful finding guilty of defendant both unanimous charges.4 possession gun for a new filed his motion In defendant mid-December again argued trial. He they jury to when returned with to the continue
court’s order unduly that the verdict coercive and non-unanimous verdict were motion, denying the trial In therefore be set aside. should judge explained disputed instructions: being as it is that have as much time conveyed they I think what was going it that I was It didn’t have to do day, reach a decision in this case.
needs to it took for them proceed for afterward whatever to be here days It have to come back by was fine with me. didn’t that we discussed before process if wanted at 4 In fact court ends o’clock. normally point 4 o’clockbecause game we wanted the it was with me because into the Giants okay deliberate one. and cautious to be deliberative process twenty January to a term was sentenced defendant (ÑERA), Early Act N.J.S.A. years, Release to which No first-degree 20:48-7.2, offense applied, on lesser-included posses- second-degree manslaughter. count for aggravated sentencing purpose merged for weapon of a an unlawful sion five-year concurrent was sentenced purposes, and defendant weapon. third-degree possession unlawful term for argument record, raised defendants addressed, on the The court then concerning verdict that an inconsistent required had returned whether germane to discussion. is not this That record relief. aspect date on the certain a bench trial a later persons consented to Defendant charge. have weapons *10 unpublished opinion, In an Appellate Division reversed defendant’s conviction and remanded for a new trial. That deci- panel’s sion was on the based conclusion that the trial court’s supplemental charge relating comments in the potential to week- process.”6 end Describing language deliberations “tainted the coercive,” “impermissibly that, panel literally, found taken suggested the instruction required would be reached, remain in the courthouse until a unanimous verdict was if through even panel deliberations continued the weekend. The that, although concluded the court did not believe that, understood those remarks to mean trial court “failed to appreciate might the effect jury,” [the] comments have on the light judge’s position authority.” “exalted petition certification,
The filed a urging State for us to conclude suggestion that the might that deliberations continue through impermissibly the weekend was not grant- coercive. We petition, ed (2006), and we now affirm.
II. argues supplemental jury State the trial court’s in- struction was not point, coercive. More to the the State asserts Appellate give that the Division adequate failed to deference to the trial court’s evaluation impact of these comments on the short, jury. In urges the State us to conclude trial court’s pressure any instruction did not juror change hold-out his or verdict, her vote to emphasized reach a unanimous but rather importance taking enough during time process. the deliberative context, Read the State asserts that the court’s comment about compel weekend deliberations did not reach verdict hastily, but ample instead assured them that time would be sought improper Defendant also reversal because of exclusion of defense testimony prosecutorial Appellate misconduct. The Division found those arguments justify opinion," lacked "sufficient merit to in a discussion written see 3(e)(2), R. and we have considered them. 2:11— rush them not to to deliberate and cautioned provided them judgment.
Moreover, argues the comment about the that because the State afternoon, Wednesday no reasonable was made on weekend force them to it to a threat juror have believed would Rather, light of the time long it took. no matter how continue understood, made, jury would have comment was when the understand, to be facetious. the trial court’s remark and did Finally, court’s contends that trial the State cautionary language because appropriate contained instructions, previously all of the delivered court referred to trial *11 which, jurors their conscien- not to surrender part, in instructed tiously merely a verdict. to return held beliefs Appellate judgment should argues that Division’s
Defendant the unduly instruction coer- affirmed the trial court’s was be because instructions, importance defendant Emphasizing of cive. the of into neutral area argues that a subtle intrusion the even Notwithstanding impermissible. the trial court’s deliberation is jury implicating deliber- instruction to the weekend belief that the give willingness to them as much merely signaled to them ations needed, of that argues that the effect defendant time as dissenting juror jurors to charge prompted supplemental the creating unjust forgo independent judgment, an result. their III. supplemental charges given in the context
Our modern view of
can
traced
1980. In
report
is deadlocked
of
Czachor,
(1980),
392,
we
82
tendency to
focus
the member or
members
who
minority.
398-99,
were
See id. at
reality,
A.
*12
holding
by
Our
in Czachor was informed
earlier
decisions
this
concerning
Court
tendency
any supplemental
instruction to
jury
influence
inappropriately.
particular,
deliberations
In
we
quoted our earlier admonition that
an instruction to a
that
expense
focused
of a
tendency
new trial “has a natural
with
interfere
the exercise of
judgment,
unfettered and unbiased
by
illusory
means of an
overemphasis
consideration or
of an
400,
extraneous
at
Stem,
factor.” Id.
(quoting
A.2d 593
re
In
8See
(collecting
Czachor,
B. analysis Our arising circumstances from deadlocks in solely, however, Czachor did focus on the words could appropriately Rather, supplemental charge. be included in a we timing addressed as well the such a and set forth general parameters when, often, supplemen and how such a Czachor, given. 406-07, tal could be supra, See N.J. 413A .2d593. specifically, rejected adoption per
More we of a se rule that newly would limit the number approved of times when the instruc given jury. tion could be to a deadlocked See id. at 413 A .2d Noting 593. that the Ninth adopted Circuit had prohibiting a rule
235
coercive,
charge
unduly
see United
any repetition
of the Allen
(9th
Seawell,
Cir.1977),
1159,
cert.
1162-63
v.
550 F.2d
States
(1978),
591,
denied,
991,
L.Ed.2d 666
we
439 U.S.
99 S.Ct.
58
charge
has been
the Allen
itself
“[w]here
concluded instead
features,
appear
it would not
to eliminate its coercive
modified
of an
necessary
judicial discretion in favor
supplant
or
to
desirable
repeated
its
Id. at 406-
per
respect
to
use.”
inflexible
se rule
Fossler,
478,
07,
F.2d
485
(citing
States v.
597
We a appropriate when repeating the is decide whether Czachor, supra, 82 N.J. at reports agree. See that it is unable context, ABA we noted that the 593. In that same A.2d reported a definite if the has “indicate that Standards deliberations, period of it would after a deadlock reasonable repeat Ibid. cautioned improper give or the instruction.” We give repeat deciding whether to trial courts faced with complexity of length and “such factors as the to consider jury’s quality and duration of the deliberations.” trial and the [the] Ibid.
C.
Czachor,
elapsed
we have
since
that has
quarter-century
In the
Many of our
meaning
infrequently.
and rationale
revisited its
analysis of considerations
have involved an
post-Czachor decisions
There,
capital
relating
juries cases.
penalty-phase
any
giving
further
are
propriety of
questions about the
statutory option for a non-unanimous
of the
heightened because
Brown,
481, 513,
2C:ll-3f;
138 N.J.
v.
N.J.S.A.
see State
verdict.
statute).
(1994)
history
significance of
(describing
result,
jurisprudence
As
a
much
our more recent
has
focused
questions
jury reporting
whether
deadlock or an
inability
has, nonetheless,
come to
unanimous decision
legal
239, 258,
Hightower,
reached a
verdict. See State v.
(1996)
That
is informed
considerations about
whether,
light
length
complexity
of the
of the trial and
*15
proofs,
jury
spent enough
deliberating
has
time
that
reported inability
unanimity
report
achieve
was in fact a
jury
had
a
reached
non-unanimous verdict. See State v.
Ramseur,
123, 300-05,
(1987),
denied,
106 N.J.
Indeed, only rarely implications we have considered the of our have, focus, Czackor in non-capital decision cases. When we our general, limiting any has been on kind interference with the Shomo, process, 248, 257, deliberative v. see State 609 (1992) (disapproving acceptance partial A.2d 394 verdict fol deliberations); Corsaro, lowed to continue State v. 107 339, 346, (“deliberative (1987) N.J. process 526A.2d 1046 ... must be insulated from warp influences that could or undermine the jury’s determination.”), deliberations and its ultimate rather than particular on applications guidance relating of the in Czackor jury deadlocks.
287 cautioned, however, to dis inappropriate is it We have contrary to other position a juror taken charge a who has substituting an alternate jury purpose for the of a members Valenzuela, unanimity. State v. might able create who (1994). Rather, 458, 468-69, we have made .2d 582 643 A N.J. circumstances, jury is appears “that the where it in such clear that inquire jury whether further should] court [the deadlocked A.2d likely a Id. at verdict.” will result deliberation trial courts to consider whether have directed 582. We clearly is opinion between members “difference of is, intractable,” is deadlocked concluding that if it then the context, In that we have declared. Ibid. a mistrial should be juror dissenting back a appropriate is to send noted that it a Ibid. “repeatedly” report a of deadlock. after into deliberations Czachor, Division, has following our directives in Appellate that, among other by juries guilty reached verdicts reversed the standard given general admonitions of things, never were 429-30, Allen, N.J.Super. charge. See State v. final appellate our court hesitated Nor has (App.Div.1998). A.2d 220 supple given guilty returned after a verdicts overturn attempted the trial court was coercive because mental weakest “possibly focus deadlock” to “undo *16 a through imposition of deadline links in the chain” State v. a retrial. See would necessitate that a deadlock reminder 561, 564-66, (App.Div.1997) 726 Nelson, 701 A.2d N.J.Super. 304 juror, who refused directed supplemental that (holding that allotting only facts, permissible, but was to deliberate to discuss coercive). completion was forty-five of deliberations minutes for similarly vigi circumstances, appellate panels have been In other N.J.Super. Vergilio, 261 v. of coercion. See State lant for evidence distraught (instructing 648, 655, (App.Div.1993) A.2d 619 671 coercive); unduly State juror deliberations was holdout continue 68, 74, (App.Div.1986) Jones, A.2d 496 N.J.Super 518 214 v. on lesser-included (concluding sponte additional that sua inherently apparent deadlock response offense offered coercive).
238 always, question
As
is whether the
instruction
jurors
improperly
dissenting
has
influenced
change
their
Marshall,
343, 351-52,
votes. See State v.
173 N.J.
As our recognized, Division general inqui- has even ry by judge may about present possibility deliberations coercion. circumstances in which carefully the trial .court reminded inquiries progress about delibera- tions advice to them given only about usual court hours was of keeping the context them informed or that them reminded pressured, not should feel the comments have been found See, Barasch, e.g., to be coercive. v. N.J.Super. State 360-61, (sua (App.Div.2004) sponte inquiry about progress, day, near the end of the coupled court emphasis pressure intended); that no to reach a verdict was State v. *17 DiFerdinando, 382, 396, N.J.Super. 345 A.2d (App.Div. 440 2001) (use charge advising court of time when Allen modified deliberations, coupled usefulness further inquire about would pressure inappropriate that no that stressed with statement intended), denied, 338, 793 reach a consensus was certif. upon our All of these considerations bear A.2d 717 said, judge and the context only of not what evaluation it, jury the words and of how the understood he but which said implications. their
IV. analytical that we consider the against It framework is this by arguments raised the trial court and made comments observing was con- begin by that the evidence parties. We who, testimony key witnesses at from two flicting, and included times, credibility was attacked and whose had recanted various guilt, of defendant’s generally specifically. The evidence both noted, panel “sufficient to sustain the appellate aptly was as the overwhelming.” testimony, delivered guilt, not finding of but complex, but days, particularly over the course three reporting that it was its note to the court sent when deliber- unanimously agree it had been on the verdict” “unable to for, most, single day. ating with an confront the court did not
We note announce a dead ambiguous question suggested but did not circumstance, held, in Appellate has As the Division lock. simply given a might court have Childs, deliberating, directing see State v. it to continue might 646-48, (App.Div.1985), N.J.Super. 499 A.2d directing presented opted question without answer the have DiFerdinando, supra, 345 jury to continue deliberations. See Rather, 392-93, 440. the court here N.J.Super. at benign believed relatively communication received a agree. it was unable to deliberations, error brevity we find no light of the inquire specifically wheth- not to about trial court’s decision
240 likely
er further deliberations would result in a verdict. While we appropriate juror have held that a “[t]he course when indicates jury inquire jury the is is to deadlocked whether Valenzuela, likely verdict,” further deliberation will result in a supra, 469, 582; Hunt, 136 N.J. at see State v. 330, 380, (1989), always necessary is for the so, supra, trial court do Vergilio, N.J.Super. to see 261 at 619 By token, jury A.2d 671. the same only because the had been deliberating briefly, do deciding neither we fault the trial court for require jury to the to continue its deliberations.
Notwithstanding
foregoing,
the
we have concluded that the
supplemental charge
the
violated
of
directives
Czachor in two
First,
respects.
judge
fundamental
failing
repeat
erred in
aspect
charge
of
jurors
that reminded the
“not [to]
your
weight
surrender
honest conviction as to the
effect
solely
your
evidence
of
opinion
jurors,
because
of
fellow
or for
purpose
returning
the mere
a
Jury
verdict.” See Model
(Criminal),
Charges
(Further
supra,
Charge
Final
Jury
24
Deliberations).
supplemental charge
A
directs
deliberating
continue
obligation
but does not remind them of their
regard poses
grave
in this
being
risk of
misunderstood
9
therefore,
jurors
being
coercive.8
9 This
caution has been
relied
as a
particular
widely
means
ensure that
upon
being
is not coerced when
ordered to return
room for further
deliberations. Some
courts have even concluded that the Allen
itself is
language.
not coercive when
e.g.,
such
See,
accompanied by
United
cautionary
(2d
("The
Santiago,
Cir.2005)
States v.
23
Fed.Appx.
appropriate inquiry
is whether the district court instructed
on the
necessity
part
juror
judgment.")
(quotation
each
to adhere to
[or her]
his
own
and citation
omitted);
("The
(4th Cir.2004)
Martin,
United States v.
903, 906
Fed.Appx.
egregious
most
can
mistake that
be made in the context of an Allen
is for
suggest,
a district court to
any way,
surrender their conscientious
convictions.”);
(S.D.N.Y.2002)
Portuondo,
v.
735, 747
Campos
F.Supp.2d
("One
juror
of the touchstones
that demonstrates a lack of
is
coercion
language counseling jurors
inclusion
not to
cautionary
surrender
consci
any
views."),
(2d Cir.),
held
This inappropriately coercive for a possibility second reason. The reference to the that deliberations might through continue remainder of the week and into the capacity reaching weekend had coerce the into might it recognize verdict that have otherwise reached. We judge jurors only the trial believed that the understood him saying they given be would as much time as needed, if even their deliberations into stretched the weekend. explained The court simply that the intention was to instruct them thorough to be and careful in their deliberations.
However,
light
language
the court chose and the
made,
context in
likely
which the comments
is
were
that the
did not
understand
comment about weekend deliberations in
the manner in which the court intended it.
suggesting
While
ato
jury on Wednesday
through
deliberations will continue
may simply convey
weekend
to them that an abundant amount of
carefully weigh
analyze
time will be afforded to them to
evidence,
imply
the words themselves
otherwise.
on our
Based
record,
agree
review of this
cannot
we
were not in
*20
impression
they
fact under the
required
would be
to continue
long
might
deliberate
as
as it
unanimity.
take
reach
Accordingly,
together,
we conclude that taken
the failure to utilize
charge
the model
for further
cautionary
deliberations with its
language
continuing
and the reference to
throughout
to deliberate
(1998);
318, 343,
Ramseur,
V. Appellate Division that reversed judgment of the The for a new trial is affirmed. verdict and remanded RIVERA-SOTO, dissenting. Justice case, began its heard before the last words the In this following: deliberations were deliberations retire to the room to commence your mil shortly, you Very [them] to be for the facts as determine you the law that I’ve instructed to apply arriving this verdict must [of] Now, at a fair and correct verdict. the purpose judgment It is and must be unanimous. the considered each you, represent reaching jurors, an another a view towards to consult with one with as duty, your judgment agreement, individual so violence to own your if can do without you any do so after an only impartial decide the case for but yourselves, Each of must you jurors. the course of fellow your your of the evidence consideration change own views your not hesitate to reexamine and/or your deliberations do your do not surrender honest erroneous, if are convinced are but you opinions, weight of the or effect of evidence because solely opinion conviction as to the returning a verdict. or for the mere purpose fellow your judges, judges sole [are] facts, are and your You are not you you partisans, that has been admitted. the truth from the evidence [is] interest ascertain long You deliberate as you You are now in courtroom. could tomorrow, if do. So we will want, you whenever want and come back you stop be here for you---- p.m. on deliberate; Wednesday, it was 2:44 The retired to and re- that afternoon deliberated October 2004. following morning. turned to its deliberations deliberations, starting twenty-four hours after its than Less unanimously agree[ *21 jury stating ] that it “cannot sent a note day that “one does not The trial court noted the verdict.” go through it takes time s]ometimes make [because deliberation process explained court the deliberative process.” trial The jury should cautionary undertake and closed with these obser- vations: keeping I want but you I want to do so in I continue, you mind what said both now and the basic instructions that I earlier, delivered to I think you if yesterday. being deliberating jury focus on you that and what is asked of as a process you
n that,maybe, that will be of some assistance to you. Would resume you please your deliberations. Thank you. Figueroa Counsel for defendant Robert and his co-defendant jointly complained jury that instructions the trial court had just provided “too requested jurors were forceful” and “you reinstructed that your views, etc., should not surrender etc.” demurred, The trial court explaining that I told the in the already and, basic which I by reference encompassed charge, jurors last is [“]it your to consult with one duty [and] another reaching agreement, deliberate a view towards an if can sodo without you judgment. violence individual Each of your must decide the you ease but do so yourselves, after only impartial of the evidence with consideration fellow jurors. In the course of deliberations do not your hesitate to reexamine own your change views and if your opinions, convinced but they are do not erroneous, weight surrender honest conviction as to the your effect the evidence solely returning because opinion fellow or for the your mere purpose verdict!”] charge [asking And last resume its deliberations,] I tell incorporate, reference, my them previous they must remember all of it. aspects Tellingly, specifically defense counsel explained that no mistrial sought jury.” because “[w]e want this
From
setting,
majority
this factual
explains
square-
that it is
ly within “the sound discretion of the trial court to decide whether
repeating
the [Czachor1]
is appropriate
when a
re-
ports
Ante,
is
agree.”
unable to
190 N.J. at
(2007).
majority
that,
at 836
rightly
context,
*22
majority
question is
differently,
emphasizes that “the
whether
dis
improperly influenced the
supplemental instruction has
238,
senting
change
at
It is in the
of these
view,
majority’s
majority.
In
part company with the
must
Czachor in two
supplemental charge
“the
violated the directives of
240,
As to the
respects.”
Id. at
247
Jordan,
608);
422,
N.J.
A.2d
v.
147
ly, supra,
Harmon, supra, jury question, considered an whether answer which evinced offense, charged its confusion as to an capacity element of the had the “clear case, juty[.]” mislead the In that we responsive considered the trial court's circumstances!!,]” instruction based on "the which included "the conflicted evidence, confusion, clarification, jury’s the admitted the dubious and the fact dispute[J” that the other verdicts do not the resolve factual Id. at said, Simply supplemental charge 1047. the was not considered in isolation in any by majority. of the cases relied on the approach my view, the restricted precepts, in forbid Those in leads majority. application fair this ease Their adopted the that, than court because the trial me to conclude had —less very jury in charged the words twenty-four hours before — repeated here and because claims should have been defendant summing up supple- in earlier trial court referenced its Furthermore, trial charge, I see no coercion here. mental long placed at the concerning he would be court’s comments how weekend, upcoming innoc- including were jury’s disposal, over First, judge the trial proper in context. uous when viewed their concerning being there for several expressions clear that his made immediately explanation precisely after his days were made undergo during juries to the deliberations what we would want Second, explained that “we will be here process. the trial court go through process” without once you to this long as it takes verdict; clearly any again, understood tilting towards process, and not its result. was on the deliberations focus charge, the trial court closing supplemental Finally, “keep- its to continue deliberations that was reminded earlier, the basic instruc- ing I both now and in mind what said I you yesterday.” Because cannot I tions that delivered principal jury instructions as whole —both conclude jury instructions —were and the jury instructions instructions, erroneous, I find that cannot and because coercive, justify vacating this cannot part, I were whole remanding for a new trial. the case conviction Therefore, respectfully I dissent. LONG, ZAZZALI, Justices
For affirmance —Chief Justice LaVECCHIA, ALBIN, HOENS —6. WALLACE
For reversal —Justice RIVERA-SOTO —1.
notes
in this
focus,
general,
“our
limiting any
has been on
kind of interfer-
ence
process,
with the deliberative
rather
on particular
than
applications of
guidance
relating
in Czachor
dead-
(citations omitted).
locks.” Id. at