STATE OF NEW JERSEY v. MELVIN JACKSON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5317-03T45317-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MELVIN JACKSON,

Defendant-Appellant.

___________________________________________________

 

Submitted May 16, 2006 - Decided May 31, 2006

Before Judges Coburn and Lisa.

On appeal from the Superior Court of New Jersey,

Law Division, Essex County, I-01-08-3220.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Kevin G. Byrnes, Designated

Counsel, of counsel and on the brief).

Paula T. Dow, Essex County Prosecutor, attorney

for respondent (Leeann Cunningham, Assistant

Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant was tried before a jury on charges involving controlled dangerous substances, resisting arrest, and hindering apprehension. He was found not guilty on six counts but guilty on the four counts which charged third degree possession of heroin, N.J.S.A. 2C:35-10(a)(1) (count six); third degree possession of heroin with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and (b)(3) (count seven); fourth degree resisting arrest, N.J.S.A. 2C:29-2(a) (count nine); and fourth degree hindering apprehension, N.J.S.A. 2C:29-3(b)(4) (count ten). The judge sentenced defendant to imprisonment for an aggregate term of nine years with a four-year period of parole ineligibility.

The State's evidence indicated that on May 29, 2001, in Newark, an undercover officer, driving an unmarked car on Sixth Avenue near North Twelfth Street, was flagged down by defendant, who, at the officer's request, sold him vials of cocaine. The officer paid for the drugs with a marked twenty dollar bill. The officer left the scene and radioed a description of defendant to his backup unit. Moments later defendant was arrested after a brief struggle and was found to possess seven vials of cocaine, ten decks of heroin, and the marked twenty-dollar bill. The parties stipulated that the incident occurred in a public housing zone. The not guilty verdicts indicate the jury's rejection of all the drug charges involving cocaine and the public housing zone charge involving heroin. The defense presented no witnesses.

Defendant's first argument on appeal is that the trial judge erred in refusing to voir dire a juror about comments she made to other jurors indicating a lack of impartiality, and further erred in denying defendant's motion for a mistrial based on the juror's misconduct. Since the judge's failure to interview the juror requires a new trial, we need not consider defendant's other arguments.

The trial lasted three days, with testimony being presented to the jury on the first day and most of the second day. Toward the end of the second day, the jury was charged and began its deliberations. After the judge answered a couple of jury questions, he adjourned deliberations to the next day. Juror Thirteen, an attorney at law, asked to address the judge, and made the following statement:

[J]uror number two . . . has in fact said things prior to the close of evidence which . . . gave me the opinion and impression that she had already formed an opinion as to the guilt or innocence of the defendant. . . . I don't know whether or not she said it in jest, partially in jest or partially seriously but I definitely got the opinion that she had formed an opinion as to the defendant's guilt or innocence prior to the close of evidence.

Juror Thirteen indicated that the remarks had been made on two occasions in front of other jurors in the jury room. The first statement occurred on the first day of trial during testimony of a police officer. Juror Thirteen recounted that Juror Two said that "we all know . . . what the evidence is, let's just get it over with." No other juror responded. The second statement, which was made in the jury room just before the charge, was that "this is all just common sense, to that effect." Juror Thirteen said he replied that the jury was "supposed to wait until we hear all the facts and . . . [are] charged." He also said to Juror Two that "there was a difference between common sense and what the law is," that "it seemed to [him] as if she'd already formed an opinion," that she "should recuse herself because she was no longer impartial," and that she "hadn't been [impartial] from the start of the trial." He was not sure of her reply. Just before the charge, another juror said to Juror Thirteen that she believed other jurors agreed with his concerns about Juror Two.

Defense counsel moved for a mistrial, which the prosecutor opposed, arguing that Juror Two should first be questioned by the judge, and then, if necessary, the other jurors should be questioned to determine if they had been tainted by the remarks.

The judge said he would address the problem the next day, which he did. He expressed concern about interviewing a juror or jurors during deliberations, and found that although Juror Two's statements were inappropriate, he "should assume . . . that the juror would follow her oath . . . to follow the law." Consequently, the judge refused to interview any juror or declare a mistrial.

We agree with the trial judge's characterization of Juror Two's remarks as inappropriate, because they suggest that the juror had decided defendant was guilty before the State's conclusion of its case and that she had remained steadfast in that view before even hearing the law as charged by the judge.

We also acknowledge the importance of the judge's concern about interviewing jurors and possibly substituting an alternate juror once deliberations have commenced. See Pressler, Current N.J. Court Rules, comments 4.3 and 4.3.1 on R. 1:8-2 (2006).

But when a judge learns, as here, that a juror has possibly violated the solemn duty of impartiality, whether by exposure to outside influences, see e.g., State v. Sherzer, 301 N.J. Super. 363, 486 (App. Div.), certif. denied, 151 N.J. 466 (1997), or by prematurely reaching and expressing a fixed opinion about defendant's guilt, State v. Marchitto, 132 N.J. Super. 511, 516 (App. Div. 1975), the judge must fully investigate, or otherwise prejudice must be presumed. Id. at 516; State v. Sherzer, supra,, 301 N.J. at 487. Since the judge failed to interview Juror Two, we are obliged to reverse.

 
Reversed.

 

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A-5317-03T4

May 31, 2006