Lead Opinion
delivered the opinion of the Court.
In 1980, we announced guidelines to govern trial courts faced with the questions of whether and how to direct juries that had reported themselves to be deadlocked to continue their deliberations. State v. Czachor, 82 N.J. 392,
The question presented in this case is whether a supplemental charge to the jury reporting a deadlock that did not repeat those admonitions, and that suggested that deliberations would continue until unanimity was achieved, constitutes reversible error. Because we have concluded that the language used by the trial court, which was not tempered by any repetition of the language of the modified, supplemental charge, had the effect of coercing the dissenting juror or jurors into agreeing with the verdict announced shortly thereafter, we direct that defendant be afforded a new trial.
I.
A.
We begin our analysis with a recitation of the testimony and evidence presented during the trial.
According to Davis, Colon then handed a gun to defendant who pressed it to Pretlow’s head. In response, Pretlow began to struggle with defendant for control of the gun and punched defendant three times in the face while doing so. Colon attempted to break the two apart, while Davis and Austin urged Pretlow to leave because they were unarmed. After defendant and Pretlow were separated, defendant raised the gun, pointing it at Davis. As Davis ran up the street, he heard shots being fired.
Austin was hit once in the left leg and fell to the ground. Forensic evidence produced at trial demonstrated that Pretlow was hit three times in the leg and once in the chest. He died the next day at the hospital.
At the sound of the gunfire, Jose Banos, a resident of a nearby building, awoke. He thought that someone had thrown a rock at a car window, but his wife told him that she thought it was the sound of gunshots being fired. Banos looked out of his window and saw a tall thin man and a shorter man, noting that the thin one had a black object in his hand. He testified that he heard the sound that had awakened him again after he had finished looking out of the window.
Two Elizabeth police officers responded to a call of shots being fired. They left after dispersing a crowd that was watching an unrelated argument between two women, but returned a few minutes later when they were alerted by two other police officers that Pretlow and Austin had arrived at a nearby hospital with gunshot wounds. Near the scene they found a Cleveland Indians baseball cap, which they later learned matched the shirt Pretlow had been wearing. In addition, the officers noticed that there was a bullet hole and a shattered rear window in a parked Hyundai that they discovered belonged to Banos, and they found three spent shell casings near the car. They also found a wristwatch, a blue Polo headband and a fourth shell casing between the Hyundai and another parked car. Two “projectiles” were later found lodged inside of the Hyundai.
The two other police officers who had gone to the hospital were not able to interview Pretlow, because he was undergoing surgery from which he never regained consciousness. They attempted to interview Austin, who was not cooperative. He gave the officers five different false names before they learned his identity from a family member at the hospital. When Austin spoke with the officers, he first told them that the argument at the bar had been between two women and that he and Pretlow were hit by bullets when shots were fired as part of that fight. He told the officers that he was unable to identify the shooter, telling them that he did not know the shooter and thought that the people involved were from out of town. Austin was released from the hospital later that day.
The next day, Austin walked into the Elizabeth Police Station and told the desk officer that he had information about the Pretlow shooting. He then voluntarily gave Detective Ismael Olivero a statement about the incident. His statement was
Davis, who had also been with Pretlow at the bar, gave conflicting information to police and defense investigators as well. Davis first appeared, voluntarily, at police headquarters and told the police that he had information about the shooting. In his statement, Davis identified defendant as the shooter and revealed that Davis had seen Colon retrieve the gun from his car and hand it to defendant. Prior to trial, however, Davis gave a written statement to an investigator for defendant. That consisted of a single, handwritten sentence in which he stated that he had not seen anything at all on the date of the shooting. At trial, after Davis had given testimony consistent with his first statement to the police, he disavowed the written statement he had given to the defense investigator. He explained that he signed that statement because he was approached on the street by defendant’s investigator, without warning, outside of a family member’s house in another city. Davis testified that he wrote the statement for defendant’s investigator because he was afraid of defendant and of what he would do if he testified against defendant.
Both Austin and Davis were cross-examined on the inconsistencies between their testimony and their statements to the police and to defendant’s investigator. In addition, each was confronted with his criminal convictions and examined on their membership, along with Pretlow, in a street gang. Defendant’s investigator, David Foster, who had interviewed Davis and Austin, and to whom each had given his conflicting statement, also testified. As to Davis, Foster denied that he approached him without warning in the street and testified that Davis had reached out for him and volunteered his recantation. In addition, Foster testified that he spoke several times with Austin before taping his statement. According to Foster, Austin told him “he was feeling guilty that he said the wrong thing to the Prosecutor.” Co-defendant Colon called Joseph Rolo, an auto body shop manager, to testify that Colon’s ear, the gray Intrepid, was in his shop for repairs from February 10 until February 24. Colon therefore contended that Davis’s testimony to the effect that Colon had retrieved a gun from his car and had handed it to defendant could not be correct.
B.
Defendant and co-defendant Colon were indicted for first-degree murder (of Pretlow), N.J.S.A 2C:ll-3a(l), (2), N.J.S.A 2C:2 — 6; first-degree attempted murder (of Austin), N.J.S.A 2C:ll-3a, 2C:5 — 1; second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a; and third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5c. In a separate indictment, they were also charged with second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7b. Defendant and Colon were tried together in a
The jury began deliberations at 2:45 p.m. on Tuesday, October 26, 2004. The initial jury charge, consistent with our Model Charge, see Model Jury Charges (Criminal), Final Charge (1994), included the following instructions:
Now, this verdict must represent the considered judgment of each of you, and must be unanimous. It is your duty, as jurors, to consult with one another with a view towards reaching an agreement, if you can do so without any violence to your own individual judgment. Each of you must decide the case for yourselves, but do so only after an impartial consideration of the evidence with your fellow jurors. In the course of your deliberations do not hesitate to reexamine your own views and/or change your opinions, if you are convinced they are erroneous, but do not surrender your honest convictions as to the weight or effect of evidence solely because of the opinion of your fellow jurors or for the mere purpose of returning a verdict.
[ (emphasis added).]
It is not entirely clear from the record, but it appears that the jury ended its deliberations that day by 4:20 p.m. and returned to the courthouse to continue the next morning at approximately 9:00 a.m. It also appears that the jury was released for lunch from noon until 1:30 p.m., after which they again began to deliberate.
The same day, shortly before 2:25 p.m., the jury sent the court a note advising that “we cannot unanimously agree on the verdict.” The trial court did not ask the jury whether further deliberations would result in a verdict. Instead, the court gave the jury the following supplemental instruction:
I want to tell you, right now, that one day does not a deliberation make. Sometimes it takes time to go through the process.
And in response to your note I just want to speak with you for a minute or two. I want to speak about the jury deliberation process to be sure that you fully understand just what is contemplated.
It is a process in which you are asked to do two things. You are asked to listen to what is being said by the other jurors with a view towards accepting what you hear, and at the same time you are asked, when it’s your turn to speak, to speak with a view towards persuading the others to what you are saying, and it works when jurors are able to do both. It’s not that difficult to do when you realize, what it is a rational deliberative process and it’s a process of which you are requested, as you listen to what the others are saying, to receive that with an open mind, in other words, in a receptive frame of mind to be persuaded to what you are hearing. Then, as I say, when you speak you are also to speak with a view towards persuading the others to what you are saying.
Now, that, obviously, is an ongoing process, but functions when the jurors are only able to do both and you do that in a building block fashion, a building block fashion, if you will, where you start out with some rather basic simple facts and begin to move on from there to other facts and you talk about the evidence and then address, are we satisfied with this, that, or the other thing has been established and exists, and what you are doing is building a foundation, if you will, a factual foundation, and then when you’ve done that you begin to then address, what does that mean? What does this tell us? What may we properly and reasonably infer from what we’ve concluded are the basic facts and what isa strong rational inference or is it not? Are we persuaded we should draw that inference and only when you’ve gone through that, still just dealing with the facts and drawing inferences from those facts do you get, then, to the elements of the offense and ask yourselves, now, has the State established this element beyond a reasonable doubt, but all throughout that process it is both a speaking and listening deliberation and each juror is expected to listen with a view to be persuaded by what the others may be stating and what the juror hears at the time, and also speaking with a view towards persuading others as to what is to be said at the time. Through that deliberation, through that rational process you begin to go and build those blocks.
I got to be here tomorrow, I got to be here Friday. I got nothing going on Saturday, and Giants are playing away on Sunday, so we will be here as long as it takes you to go through this process.
I want you to continue, but I want you to do so keeping in mind what I said both now and earlier, the basic instructions that I delivered to you yesterday. I think if you focus on that process and what is being asked of you as a deliberating jury that, maybe, that will be of some assistance to you.
[ (emphasis added).]
Defendant immediately objected to this instruction, arguing that it was inappropriate because the trial court failed to remind the jurors that they should not “surrender their honest convictions” merely to return a verdict. Referring to the language used by the court as “too forceful,” defendant asked the court to clarify the underscored comments by explaining to the jurors that they would not actually be held for the remainder of the week and even over the weekend if they failed to return a unanimous verdict.
The trial court declined to explain or clarify, in part because the supplemental charge generally referred back to the initial instructions which had included all of the appropriate cautionary language. Defendant then requested that the court specifically remind the jury about the relevant part of that initial instruction concerning the process of deliberations. The court, however, refused to do so because the court did not agree that the supplemental charge was itself inappropriate.
Approximately one hour later, the jury reported that it had reached a verdict
Both defendants moved for a mistrial, arguing that the jury’s non-unanimous response to some of the charges demonstrated that the supplemental charge had been coercive. They reasoned that because one juror had openly expressed her dissent on the weapons offenses, her apparent agreement with the aggravated manslaughter charges must have been motivated only by pressure to avoid being held in deliberations all weekend. In denying the motion for a mistrial as to all charges, the trial court stated in part:
First of all, let me put to bed this observation by the defense, for obvious appellate purposes, that the court somehow coerced the jury by telling the jury that it was going to be here tomorrow, Friday, Saturday, and Sunday. I think that the tenor of the comments, when taken in the totality of the circumstances up close and live with an opportunity to observe here, as opposed to the written word, was that there was no rush to judgment required here. I told them that one day does not make a deliberation and that we can be back here any of those days, and they could feel comfortable that they could continue with their deliberations and reach a decision at their leisure on any of those days. I didn’t suggest that they had to come back with a verdict today.4
Approximately twenty minutes later, the jury returned with a unanimous verdict, finding defendant guilty of both of the unlawful gun possession charges.
In mid-December 2004, defendant filed his motion for a new trial. He again argued that the supplemental charge and the court’s order to the jury to continue when they returned with a non-unanimous verdict were unduly coercive and that the verdict should therefore be set aside. In denying the motion, the trial judge explained the disputed instructions:
I think what was being conveyed to the jury is that they have as much time as it needs to reach a decision in this case. It didn’t have to do it that day, I was going to be here for days afterward and whatever it took for them to proceed with the process that we discussed before was fine with me. It didn’t have to come back by 4 o’clock because court normally ends at 4 o’clock. In point of fact if they wanted to deliberate into the Giants game it was okay with me because we wanted the process to be a deliberative and cautious one.
In January 2005, defendant was sentenced to a term of twenty years, to which the No Early Release Act (ÑERA), N.J.S.A. 20:48-7.2, applied, on the lesser-included offense of first-degree aggravated manslaughter. The count for second-degree possession of a weapon for an unlawful purpose merged for sentencing purposes, and defendant was sentenced to a concurrent five-year term for third-degree unlawful possession of weapon.
In an unpublished opinion, the Appellate Division reversed defendant’s conviction and remanded for a new trial. That decision was based on the panel’s conclusion that the trial court’s comments in the supplemental charge relating to potential weekend deliberations “tainted the process.”
The State filed a petition for certification, urging us to conclude that the suggestion to the jury that deliberations might continue through the weekend was not impermissibly coercive. We granted that petition, 188 N.J. 358,
II.
The State argues that the trial court’s supplemental jury instruction was not coercive. More to the point, the State asserts that the Appellate Division failed to give adequate deference to the trial court’s evaluation of the impact of these comments on the jury. In short, the State urges us to conclude that the trial court’s instruction did not pressure any hold-out juror to change his or her vote to reach a unanimous verdict, but rather emphasized the importance of taking enough time during the deliberative process. Read in context, the State asserts that the court’s comment about weekend deliberations did not compel jurors to reach a verdict hastily, but instead assured them that ample time would be provided for them to deliberate and cautioned them not to rush to judgment.
Moreover, the State argues that because the comment about the weekend was made on a Wednesday afternoon, no reasonable juror would have believed it to be a threat to force them to continue no matter how long it took. Rather, in light of the time when the comment was made, the jury would have understood, and did understand, the trial court’s remark to be facetious. Finally, the State contends that the trial court’s supplemental jury charge contained appropriate cautionary language because the trial court referred to all of the previously delivered instructions, which, in part, instructed jurors not to surrender their conscientiously held beliefs merely to return a verdict.
Defendant argues that the Appellate Division’s judgment should be affirmed because the trial court’s instruction was unduly coercive. Emphasizing the importance of jury instructions, defendant argues that even a subtle intrusion into the neutral area of jury deliberation is impermissible. Notwithstanding the trial court’s belief that the instruction to the jury implicating weekend deliberations merely signaled to them a willingness to give them as much time as they needed, defendant argues that the effect of that supplemental charge prompted the dissenting juror or jurors to forgo their independent judgment, creating an unjust result.
III.
Our modern view of supplemental charges given in the context of a report that the jury is deadlocked can be traced to 1980. In State v. Czachor, 82 N.J. 392,
In part, our concern with the Allen charge rested on its tendency to focus on the member or members of the jury who were in the minority. See id. at 398-99,
A.
Our holding in Czachor was informed by earlier decisions of this Court concerning the tendency of any supplemental instruction to influence jury deliberations inappropriately. In particular, we quoted our earlier admonition that an instruction to a jury that focused on the expense of a new trial “has a natural tendency to interfere with the exercise of unfettered and unbiased judgment, by means of an illusory consideration or overemphasis of an extraneous factor.” Id. at 400,
In Czachor, we concluded that “the Allen charge conveys both blunt and subtle pressure upon the jury, pressure which is inconsistent with jury freedom and responsibility. Such a charge does not permit jurors to deliberate objectively, freely, and with an untrammeled mind.” Id. at 402,
As a part of our decision in Czachor, supra, we also directed our trial courts to cease utilizing the then-standard New Jersey model charge, see Model Jury Charges (Criminal), No. 4.190 (1978), in favor of the sample jury charge that had been suggested for this purpose by the American Bar Association (ABA), see ABA Project on Minimum Standards for Criminal Justice, Standards Relating to Trial by Jury § 5.4, at 145-47 (Approved Draft 1968) (ABA Standards). 82 N.J. at 407,
Thereafter, our Model Criminal Charge was revised to comply with our directive. It now includes a final charge to be given in all criminal trials, which addresses the Czachor decision in two ways. First, the standard final charge includes a section describing the process of deliberation. See Model Jury Charges (Criminal), Final Charge at 15-16 (Deliberations) (2004). Second, the final charge includes the specific admonitions to the jury that were our focus in Czachor as a separate charge to be given in the event that a jury is directed to continue its deliberations. Id. at 24 (Further Jury Deliberations) (1994). The Model Charge therefore complies with our directive by specifically including language to reduce its coercive effect, in particular when “further jury deliberations” are needed.
B.
Our analysis of the circumstances arising from jury deadlocks in Czachor did not focus solely, however, on the words that could appropriately be included in a supplemental charge. Rather, we addressed as well the timing of such a charge and set forth general parameters as to when, and how often, such a supplemental charge could be given. See Czachor, supra, 82 N.J. at 406-07,
More specifically, we rejected the adoption of a per se rule that would limit the number of times when the newly approved instruction could be given to a deadlocked jury. See id. at 406,
We therefore left it to the sound discretion of the trial court to decide whether repeating the charge is appropriate when a jury reports that it is unable to agree. See Czachor, supra, 82 N.J. at 407,
C.
In the quarter-century that has elapsed since Czachor, we have revisited its meaning and rationale infrequently. Many of our post-Czachor decisions have involved an analysis of considerations relating to penalty-phase juries in capital cases. There, the questions about the propriety of giving any further charge are heightened because of the statutory option for a non-unanimous verdict. N.J.S.A. 2C:ll-3f; see State v. Brown, 138 N.J. 481, 513,
That analysis, in turn, is informed by considerations about whether, in light of the length of the trial and complexity of the proofs, the jury has spent enough time deliberating that the reported inability to achieve unanimity was in fact a report that the jury had reached a non-unanimous verdict. See State v. Ramseur, 106 N.J. 123, 300-05,
Indeed, we have only rarely considered the implications of our Czackor decision in non-capital cases. When we have, our focus, in general, has been on limiting any kind of interference with the deliberative process, see State v. Shomo, 129 N.J. 248, 257,
We have cautioned, however, that it is inappropriate to discharge a juror who has
The Appellate Division, following our directives in Czachor, has reversed guilty verdicts reached by juries that, among other things, were never given the general admonitions of the standard final charge. See State v. Allen, 308 N.J.Super. 421, 429-30,
As always, the question is whether the supplemental instruction has improperly influenced the dissenting jurors to change their votes. See State v. Marshall, 173 N.J. 343, 351-52,
IV.
It is against this analytical framework that we consider the comments made by the trial court and the arguments raised by the parties. We begin by observing that the evidence was conflicting, and included testimony from two key witnesses who, at various times, had recanted and whose credibility was attacked both generally and specifically. The evidence of defendant’s guilt, as the appellate panel aptly noted, was “sufficient to sustain the finding of guilt, but not overwhelming.” The testimony, delivered over the course of three days, was not particularly complex, but when the jury sent its note to the court reporting that it was “unable to unanimously agree on the verdict” it had been deliberating for, at most, a single day.
We note that the jury did not confront the court with an ambiguous question that suggested but did not announce a deadlock. As the Appellate Division has held, in that circumstance, the court might simply have given a supplemental charge to the jury directing it to continue deliberating, see State v. Childs, 204 N.J.Super. 639, 646-48,
In light of the brevity of the deliberations, we find no error in the trial court’s decision not to inquire specifically about whether further deliberations would likely result in a verdict. While we have held that “[t]he appropriate course when a juror indicates that the jury is deadlocked is to inquire of the jury whether further deliberation will likely result in a verdict,” Valenzuela, supra, 136 N.J. at 469,
Notwithstanding the foregoing, we have concluded that the supplemental charge violated the directives of Czachor in two fundamental respects. First, the
The State urges us to overlook this shortcoming in the supplemental charge, pointing out that the full charge, given only a day earlier, included that caution. The State suggests that the court’s reference to the “basic instructions that [had previously been] delivered” sufficed to alert them to the appropriate standards notwithstanding the judge’s failure to make use of the model charge that is designed to be used in these very circumstances. The State’s argument, however, misperceives the inherently coercive effect of the language that the court used and fails to appreciate the objective evidence in the record that the jurors in fact understood the supplemental instruction to require them to continue until they reached an agreement on a verdict.
Significantly, when the jury returned shortly after the supplemental charge, and reported that it was unanimous, in fact it was not. Rather, the jury poll revealed that there was still one dissenting juror on some of the counts. In light of the complexity of the matter and the significant disputes about the credibility of the witnesses, we cannot be confident that the jury, listening to the supplemental charge, understood it in the context of the admonitions appropriately given in the earlier, complete charge.
However, in light of the language the court chose and the context in which the comments were made, it is likely that the jury did not understand the comment about weekend deliberations in the manner in which the court intended it. While suggesting to a jury on a Wednesday that deliberations will continue through the weekend may simply convey to them that an abundant amount of time will be afforded to them to carefully weigh and analyze the evidence, the words themselves imply otherwise. Based on our review of this record, we cannot agree that the jurors were not in fact under the impression that they would be required to continue to deliberate for as long as it might take to reach unanimity. Accordingly, we conclude that taken together, the failure to utilize the model charge for further deliberations with its cautionary language and the reference to continuing to deliberate throughout the remainder of the week and through the weekend impermissibly coerced the dissenting juror or jurors into reaching a verdict with which he or she did not honestly agree.
V.
The judgment of the Appellate Division that reversed the verdict and remanded for a new trial is affirmed.
Notes
Although the specific facts relating to the events and the investigation do not bear directly on our analysis, this summary illustrates that the jury was faced with significant issues of credibility.
Expert testimony demonstrated that the shell casings had all been fired from a single automatic gun. Because the gun was not recovered, the expert was unable to testify that the projectiles were also fired by that weapon.
Because we address only the issues raised by defendant Figueroa, we will not recite any part of the jury's verdict on the charges against his co-defendant Colon.
The court then addressed, on the record, the argument raised by defendants concerning whether the jury had returned an inconsistent verdict that required relief. That aspect of the record is not germane to this discussion.
Defendant consented to a bench trial at a later date on the certain persons not to have weapons charge.
Defendant also sought reversal because of improper exclusion of defense testimony and prosecutorial misconduct. The Appellate Division found those arguments lacked "sufficient merit to justify discussion in a written opinion," see R. 2:11 — 3(e)(2), and we have not considered them.
Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896).
See Czachor, supra, 82 N.J. at 397 n. 2, 399,
This particular caution has been widely relied upon as a means to ensure that a jury is not coerced when being ordered to return to the jury room for further deliberations. Some courts have even concluded that the Allen charge itself is not coercive when accompanied by such cautionary language. See, e.g., United States v. Santiago, 126 Fed.Appx. 21, 23 (2d Cir.2005) ("The appropriate inquiry is whether the district court instructed the jury as to the necessity on the part of each juror to adhere to his [or her] own judgment.") (quotation and citation omitted); United States v. Martin, 104 Fed.Appx. 903, 906 (4th Cir.2004) ("The most egregious mistake that can be made in the context of an Allen charge is for a district court to suggest, in any way, that jurors surrender their conscientious convictions.”); Campos v. Portuondo, 193 F.Supp.2d 735, 747 (S.D.N.Y.2002) ("One of the touchstones that demonstrates a lack of juror coercion is the inclusion of cautionary language counseling jurors not to surrender any conscientiously held views."), aff'd,
Our dissenting colleague contends that we have utilized a "restrictive approach” in our analysis that is "forbidfdenj” by two "precepts”, namely, our oft-repeated caution that we consider a challenged jury charge as a whole rather than in isolation and our corollary admonition that a defendant does not have a right to have the jury charged in the precise language he desires. Post, 190 N.J. at 249,
Dissenting Opinion
dissenting.
In this case, the last words the jury heard before it began its deliberations were the following:
Very shortly, you mil retire to the jury room to commence your deliberations and apply the law that I’ve instructed to the facts as you determine [them] to be for the purpose [of] arriving at a fair and correct verdict. Now, this verdict must represent the considered judgment of each of you, and must be unanimous. It is your duty, as jurors, to consult with one another with a view towards reaching an agreement, if you can do so without any violence to your own individual judgment Each of you must decide the case for yourselves, but do so only after an impartial consideration of the evidence with your fellow jurors. In the course of your deliberationsdo not hesitate to reexamine your own views and/or change your opinions, if you are convinced they are erroneous, but do not surrender your honest conviction as to the weight or effect of evidence solely because of the opinion of your fellow jurors or for the mere purpose of returning a verdict.
You are not partisans, you are judges, you [are] judges of the facts, and your sole interest [is] to ascertain the truth from the evidence that has been admitted.
You are now in charge of the courtroom. You could deliberate as long as you want, and stop whenever you want and come back tomorrow, if you do. So we will be here for you----
The jury retired to deliberate; it was 2:44 p.m. on Wednesday, October 26, 2004. The jury deliberated that afternoon and returned to its deliberations the following morning.
Less than twenty-four hours after starting its deliberations, the jury sent a note stating that it “cannot unanimously agree[ ] on the verdict.” The trial court noted that “one day does not a deliberation make [because s]ometimes it takes time to go through the process.” The trial court explained the deliberative process the jury should undertake and closed with these cautionary observations:
I want you to continue, but I want you to do so keeping in mind what I said both now and earlier, the basic instructions that I delivered to you yesterday. I think if you focus on that process and what is being asked of you as a deliberating jury ■that, maybe, that will be of some assistance to you.
Would you please resume your deliberations. Thank you.
Counsel for defendant Robert Figueroa and his co-defendant jointly complained that the jury instructions the trial court had just provided were “too forceful” and requested that the jurors be reinstructed that “you should not surrender your views, etc., etc.” The trial court demurred, explaining that
I already told the jury in the basic charge and, which I encompassed by reference in the last charge, that [“]it is your duty as jurors to consult with one another [and] to deliberate with a view towards reaching an agreement, if you can do so without violence to your individual judgment. Each of you must decide the ease for yourselves, but do so only after impartial consideration of the evidence with fellow jurors. In the course of your deliberations do not hesitate to reexamine your own views and change your opinions, if convinced they are erroneous, but do not surrender your honest conviction as to the weight or effect of the evidence solely because of the opinion of your fellow jurors or for the mere purpose of returning a verdict!”]
And in that last charge [asking that the jury resume its deliberations,] I incorporate, by reference, my previous charge and tell them they must remember all aspects of it.
Tellingly, defense counsel specifically explained that no mistrial was sought because “[w]e want this jury.”
From this factual setting, the majority explains that it is squarely within “the sound discretion of the trial court to decide whether repeating the [Czachor
It is in the application of these principles to this case that I must part company with the majority. In the majority’s view, “the supplemental charge violated the directives of Czachor in two fundamental respects.” Id. at 240,
In respect of the latter, the majority concludes that .the jury misunderstood — and was coerced by — the trial court’s following comment: “I got to be here tomorrow [Thursday], I got to be here Friday. I got nothing going on on Saturday, and [the] Giants are playing away on Sunday, so we will be here as long as it takes you to go through this process.” In the majority’s view, “[w]hile suggesting to a jury on a Wednesday that deliberations will continue through the weekend may simply convey to them that an abundant amount of time will be afforded to them to carefully weigh and analyze the evidence, the words themselves imply otherwise.” Id. at 227, 242,
Because the majority reaches its conclusions by isolating portions of the jury charge, I disagree. In this context, our inquiry must begin and end with the core proposition that a jury charge must be examined in its entirety. We have made clear that “[i]n passing on the propriety of a trial court’s charge, an appellate court reviews all that was said on the particular subject being challenged, and if on reading the charge as a whole, prejudicial error does not appear, then the verdict must stand.” State v. Ramseur, 106 N.J. 123, 280,
“This court has repeatedly held that portions of a charge alleged to be erroneous
The principle that a challenged jury charge is to be reviewed in the context of the entire instruction extends to a challenged supplemental charge. Lowenfield v. Phelps, 484 U.S. 231, 237,108 S.Ct. 546, 550, 98 L.Ed.2d 568, 578 (1988) (stating that the Court “eonsider[s] the supplemental charge given by the trial court ‘in its context and under all the circumstances’ ” (quoting Jenkins v. United States, 380 U.S. 445, 446, 85 S.Ct. 1059, 1060,
We have also made clear that “[n]o party is entitled to have the jury charged in his or her own words; all that is necessary
Those precepts, in my view, forbid the restricted approach adopted by the majority. Their fair application in this ease leads me to conclude that, because the trial court had — less than twenty-four hours before — charged the jury in the very words defendant claims should have been repeated here and because the trial court referenced its earlier charge in summing up the supplemental charge, I see no coercion here. Furthermore, the trial court’s comments concerning how long he would be placed at the jury’s disposal, including over the upcoming weekend, were innocuous when viewed in their proper context. First, the trial judge made clear that his expressions concerning being there for several days were made immediately after his explanation of precisely what we would want juries to undergo during the deliberations process. Second, the trial court explained that “we will be here as long as it takes you to go through this process” without once tilting the jury towards any verdict; again, the clearly understood focus was on the jury deliberations process, and not its result. Finally, in closing on the supplemental charge, the trial court reminded the jury that it was to continue its deliberations “keeping in mind what I said both now and earlier, the basic instructions that I delivered to you yesterday.” Because I cannot conclude that the jury instructions as a whole — both the principal jury instructions and the supplemental jury instructions — were erroneous, and because I cannot find that the instructions, in whole or in part, were coercive, I cannot justify vacating this conviction and remanding the case for a new trial.
Therefore, I respectfully dissent.
For affirmance — Chief Justice ZAZZALI, Justices LONG, LaVECCHIA, ALBIN, WALLACE and HOENS — 6.
For reversal — Justice RIVERA-SOTO — 1.
State v. Czachor, 82 N.J. 392,
Model Jury Charges (Criminal), Final Charge at 24 (1994).
Relying on State v. Jamerson, 153 N.J. 318, 343,