STATE OF NEW JERSEY v. LEROY H. FORD

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LEROY H. FORD,

Defendant-Appellant.

_______________________________________

February 16, 2016

Submitted December 7, 2015 Decided

Before Judges Lihotz and Nugent.

On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 13-02-0207.

Joseph E. Krakora, Public Defender, attorney for appellant (Susan Remis Silver, Assistant Deputy Public Defender, of counsel and on the brief).

JenniferWebb-McRae, CumberlandCounty Prosecutor, attorney forrespondent (Danielle Pennino, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Leroy Ford appeals from a judgment of conviction of two weapons offenses and resisting arrest and also challenges the aggregate sentence of twenty-one and one-half years in state prison. He makes two arguments

Point I

The trial court erred when [it] substituted an alternate juror into the jury deliberations after juror number [six], who was visibly upset, said she wanted to be excused because she did not like the way the jury deliberations were going.

Point II

The trial court erred when it imposed two extended term sentences on each of defendant's two gun possession convictions, failed to explain why it imposed a consecutive sentence for counts [two] and [three], failed to weigh aggravating factors against mitigating factors on the record, and imposed an excessive sentence on the defendant.

Finding merit in his first argument, we reverse and remand for a new trial.

A Cumberland County grand jury charged defendant in a three-count indictment with second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count one); fourth-degree resisting arrest by flight, N.J.S.A. 2C:29-2(a) (count two); and possession of a weapon by certain persons not to have weapons, N.J.S.A. 2C:39-7 (count three). After a jury found defendant guilty on the first two counts, he pled guilty to the third. The trial court denied defendant's motion for a new trial, granted the State's motion to impose an extended term, and sentenced defendant to concurrent twenty-year prison terms with ten years of parole ineligibility on the weapons offenses, counts one and three, and a consecutive eighteen-month prison term with nine months of parole ineligibility on the resisting arrest offense, count two. The court also imposed appropriate penalties and assessments. Defendant appealed.

At trial, the opening and closing statements, presentation of evidence, charge conference, charge, and jury deliberations all occurred on the same day, October 16, 2013. The State presented two witnesses at trial and defendant presented none. Through its exhibits and the testimony of Millville officers Daniel Ayars and Angel R. Lopez, the State established the following facts.

On a May night in 2012, after receiving information that a man named Antoine Rivera, wanted for a shooting, would soon be leaving an area of the city in a silver Acura, Millville police began to conduct a perimeter surveillance of the area. The information conveyed to the police included the car's registration number. Officer Lopez, driving one of the patrol cars, and his partner, Officer Ayars, spotted the Acura at approximately 10:30 p.m. and Officer Lopez activated the patrol car's overhead lights and siren. The Acura stopped on Vine Street. Before the Acura came to a complete stop, its passenger door opened.

When the Acura stopped, its passenger exited and ran. The officers ran after him. Shortly after the passenger began to run, the officers observed him reach into his waistband and then throw what appeared to be a black, metal object against the brick wall of a high-rise building. The area was illuminated with streetlights and lamp posts. The officers believed the object was a handgun. As the officers chased the fleeing man, they repeatedly yelled at him to stop, and he was under arrest. Officer Lopez actually yelled the name Rivera, believing the man was Rivera. The man was defendant.

After leading the officers on a chase over three streets, defendant stopped, raised his hands, and surrendered. The officers arrested him and returned to the building where defendant had thrown the object against the brick wall. They recovered a small black handgun with one bullet in the chamber and three or four in the magazine. A check of the gun revealed it was not registered to defendant; it had been stolen in Georgia.

Following the presentation of evidence and the court's instructions to the jury, juror number nine was selected as an alternate. The other jurors began deliberating at approximately 2:38 p.m. One hour and eighteen minutes later, at 3:56 p.m., the court received a note from the jury stating: "Juror number six requests to be excused and replaced by juror number nine."

The court discussed the note with counsel and then had juror number six brought into the courtroom, where the following colloquy occurred

Court: Now, I have a note . . . [saying] "Juror number six," and that's you, "requests to be excused and be replaced by juror number nine." Is that, in fact, your request?

Juror: Yes, sir.

Court: Is that a voluntary request on your part?

Juror: Yes.

Court: Do you choose to tell us why?

Juror: I just don't feel (inaudible).

Court: I'm I can't hear you. You what?

Juror: No I'm not going to I'm not telling it. I'm not telling it (inaudible).

Court: So you're not feeling good about the way deliberations are going?

Juror: Um-hum.

Court: Do you feel that you can't, in good conscience, participate?

Juror: Yes.

Court: Is that I mean, I don't want to put words in your mouth.

Juror: No you're not. I'm in my conscience, I don't feel that I would be able to do that, no.

Court: You don't feel you'd be able to give a verdict?

Juror: No.

The court had the juror wait in chambers while it discussed the juror's responses with counsel. During the discussion, the court stated: "We can all assume and infer, guess and . . . conjecture . . . . You know, enter into all kinds of conjecture. I don't know what to do about it." When defense counsel suggested "if she's saying that they're hung based on where she is, then you might want to read the charge for hung juries or juries that might be hung," the court responded, "[b]ut that's not what she said. . . . I mean, you might imply that . . . . You might imply [she] doesn't like being there. I don't know. I don't know what it means. I could guess."

The court eventually excused the juror over defendant's objection after the following colloquy

Court: Come on in and have a seat, the same place. Ma'am, I'm going to excuse you, in keeping with your request, unless there's anything else you'd like to tell me.

Juror: No, there's nothing else.

Court: There's nothing else to say? I'm giving you ample opportunity to tell me whatever you want.

Juror: No.

Court: No? Still want to be excused?

Juror: Yes.

Court: I'm going to excuse you, ma'am. You go down to the assembly room.

Juror: Thank you.

Court: Thank you.

The court replaced juror number six with juror number nine and instructed the jury: on its obligation to begin deliberations anew; to disregard what had previously been discussed; and to give no weight to any opinions expressed by juror number six. The jurors began deliberating anew at 4:18 p.m. Twenty-one minutes later, at 4:39 p.m., they sent the court a note inquiring whether there were fingerprints on the gun or magazine. The court had them brought into the courtroom and told them they would have to "decide what was said here and whether there was evidence regarding that and what your recollection of that evidence is." The jury again returned to deliberate at 4:46 p.m. and returned with a verdict at 4:50 p.m., approximately thirty-two minutes after juror number nine had been substituted for juror number six.

Defendant filed a motion for a new trial, which the court denied on February 7, 2014, nearly four months after the trial. Defendant, an African-American, pointed out that the juror the court excused was the only African-American on the jury, a fact "very, very significant to [defendant]." In denying the motion, the court explained it was clear there were grounds for removing her. The court recalled that the juror, when questioned, "became absolutely obdurate, tending toward being hostile. Clearly, she was not willing to continue." The court cited the juror's demeanor, noting "her obvious anxiety and her clearly observable emotional state."

The court acknowledged that if the juror's inability to continue was "because of interaction with other jurors, the decision should be to mis-try the case or order the juror to continue to deliberate." The court further acknowledged that if it had erred, the error was in failing "to conduct a more in-depth interview with the juror and to get more into why she wanted to be off the case." The court continued: "Now, while I did question her, upon reflection it might not have been thorough enough, however, a reviewing court is not privy to her demeanor, her obvious anxiety and her clearly observable emotional state." The court concluded: "I'm not certain what caused her emotional outburst but from what was said, the manner of her responses, her physical appearance, I believe her request to be excused was exclusively personal." For that reason, the court denied defendant's motion for a new trial.

Defendant raises the same argument in the first point of his brief on this appeal. He contends "the trial court's failure to determine why Juror [six] wanted to be excused from the jury prevented the defendant and this [c]ourt from knowing whether Juror [six]'s request resulted from any improper influences or extraneous matters." The State argues the court did not err because "[a]t no time did Juror Six indicate that she wished to leave the jury due to interactions with other jurors." The State maintains "[t]here is no evidence to support that Juror Six wished to leave the jury for any other reason than a personal one."

A court's substitution of an alternate juror is circumscribed by Rule 1:8-2(d)(1), which provides in relevant part

Following the drawing of the names of jurors to determine the issues, the court may in its discretion order that the alternate jurors not be discharged, in which event the alternate jurors shall be sequestered apart from the other jurors and shall be subject to the same orders and instructions of the court, with respect to sequestration and other matters, as the other jurors. If the alternate jurors are not discharged and if at any time after submission of the case to the jury, a juror dies or is discharged by the court because of illness or other inability to continue, the court may direct the clerk to draw the name of an alternate juror to take the place of the juror who is deceased or discharged. When such a substitution of an alternate juror is made, the court shall instruct the jury to recommence deliberations and shall give the jury such other supplemental instructions as may be appropriate.

We review a trial court's decision to substitute an alternate juror due to a sitting juror's inability to continue under an abuse-of-discretion standard. State v. Musa, 222 N.J. 554, 564-65 (2015). In applying this deferential standard, we are guided by certain settled principles. Rule 1:8-2(d)(1) "delicately balances two important goals: judicial economy and the right to a fair jury trial." State v. Jenkins, 182 N.J. 112, 124 (2004) (citing State v. Phillips, 322 N.J. Super. 429, 436 (App. Div. 1999)). Our Supreme Court has cautioned, however, that "[b]ecause juror substitution poses a clear potential for prejudicing the integrity of the jury's deliberative process, it should be invoked only as a last resort to avoid the deplorable waste of time, effort, money, and judicial resources inherent in a mistrial." State v. Hightower, 146 N.J. 239, 254 (1996). The Court has

directed trial courts to focus on two related issues. First, the trial court must determine the cause of the juror's concern and assess the impact of the juror's departure on the deliberative process. Second, in light of the timing of the juror's dismissal and other relevant considerations, the trial court must ascertain whether a reconstituted jury will be in a position to conduct open-minded and fair deliberations.

[State v. Ross, 218 N.J. 130, 147 (2014).]

Indisputably, the trial court in the case before us was confronted with a difficult task, having to learn the source of the juror's problem without asking questions that might elicit information about the jury's deliberations. "The premature revelation of jurors' voting inclinations would damage the deliberative process and improperly influence the decisions that must be made by both counsel and the court." Jenkins, supra, 182 N.J. at 134. To avoid such disclosure, "[j]udges must caution a juror at the outset of the colloquy that she must not reveal the way in which any juror plans to vote, or the vote tally on a verdict." Ibid. Providing "that safeguard minimizes the risk that the judge will obtain information that will give rise to a claim of impropriety." Ibid.

Further, the Court has "restrictively interpreted the phrase 'inability to continue' in Rule 1:8-2(d)(1) to protect a defendant's right to a fair jury trial, forbidding juror substitution when a deliberating juror's removal is in any way related to the deliberative process." Jenkins, supra, 182 N.J. at 124 (citing State v. Williams, 171 N.J. 151, 163 (2002)). For that reason, "[a] deliberating juror may not be discharged and replaced with an alternate unless the record 'adequately establish[es] that the juror suffers from an inability to function that is personal and unrelated to the juror's interaction with the other jury members.'" Id. at 124-25 (quoting Hightower, supra, 146 N.J. at 254 (1996)).

In Jenkins, the Supreme Court explained

A juror cannot be removed merely because she is taking a position at odds with other juror's views. State v. Paige, 256 N.J. Super. 362, 380-81 (App. Div.), certif. denied, 138 N.J. 17 (1992). A juror has the unassailable right to see the evidence in her own way and to reach her own conclusions, regardless of how overwhelming the evidence or how illogic her view may appear to other jurors. "'If a court suspects that the problems with the juror are due to interactions with other jurors, the court should instruct the jury to resume deliberations.'" Hightower, supra, 146 N.J. at 254 (quoting State v. Valenzuela, 136 N.J. 458, 472-73 (1994)).

[Jenkins, supra, 182 N.J. at 125.]

The Court in Jenkins reviewed cases in which courts appropriately and inappropriately excused jurors under the "inability to continue" standard. Id. at 125-133. We need not review those cases here. Rather, we first focus on the Court's explicit statement in Jenkins that "[a] deliberating juror may not be discharged and replaced with an alternate unless the record adequately establish[es] that the juror suffers from an inability to function that is personal and unrelated to the juror's interaction with the other jury members." Id. at 124-25 (citations omitted). The trial court in the case before us discharged juror number six on a record that did not adequately establish her inability to function was personal and unrelated to her interaction with other jury members.

The trial court's inquiry was insufficient to determine the cause of the juror's unwillingness to continue deliberations. The juror made one statement that gave the trial court reason to suspect the juror's problem was due to interactions with other jurors. When the court asked the juror, "[s]o you're not feeling good about the way deliberations are going," the juror replied, "Um-hum." That answer suggested the juror's difficulty was in some "way related to the deliberative process"; and thus a forbidden reason for substituting another juror. Jenkins, supra, 182 N.J. at 124. Even if there is some other way to interpret the juror's statement, the trial record does not adequately establish the juror suffered from an inability to function personal to her and unrelated to her interaction with other jury members. Id. at 125.

We appreciate the trial court's effort to preserve the verdict and avoid "the deplorable waste of time, effort, money, and judicial resources inherent in a mistrial." Hightower, supra, 146 N.J. at 254. We also acknowledge that an appellate court cannot possibly have the same "feel" for a witness's testimony as a trial judge who has observed the witness's demeanor, tone of voice, and emotion. Nonetheless, the cause of juror number six's emotional responses in this case could have been attributable to either personal problems or her interaction with other jurors. The record does not adequately establish the cause. For that reason, we are constrained to conclude the trial court misapplied its discretion by substituting juror number nine.

Reversed and remanded for a new trial.