STATE OF NEW JERSEY v. JAMES JONES, SR.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3956-05T43956-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAMES JONES, SR.,

Defendant-Appellant.

__________________________________________

 

Submitted May 1, 2007 - Decided May 24, 2007

Before Judges Weissbard and Graves.

On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment

Nos. 00-03-0312 and 00-04-0433.

Yvonne Smith Segars, Public Defender, attorney for appellant (Jean B. Bennett, Designated Counsel, of counsel and on the brief).

Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (Juda Babuschak, Assistant Prosecutor, on the brief).

PER CURIAM

After a jury trial in 2001, defendant was convicted of three drug offenses and was sentenced to an aggregate extended term of seventeen years in prison with eight and one-half years of parole ineligibility. In an unpublished opinion filed June 8, 2004, we remanded for a post-verdict hearing to address defendant's argument that:

THE TRIAL COURT ERRED BY NOT REPLACING THE SLEEPING JUROR WITH AN ALTERNATE, THEREBY DEPRIVING [DEFENDANT] OF HIS RIGHT TO A JURY TRIAL.

In so doing, we took note of the trial record which clearly revealed that one of the jurors was asleep at some point during the recross-examination of one of the arresting officers. The trial judge indicated an intention to make the sleeping juror an alternate, but never did so and counsel never voiced any objection. As a result, the juror participated in the deliberations. We stated:

We agree that juror five should have been removed. Whether, however, the failure to follow through on the original plan to designate him as an alternate requires reversal is not evident from the record. That is to say, while the record shows that, in fact, the juror was asleep for part of a morning's testimony, it does not reveal for how long and what, exactly, the juror missed. Certainly he missed some of counsel's cross-examination of an important witness. But was it a critical part of the evidence thereby rendering him unable to have participated fairly as a deliberating juror? If so, a new trial would be warranted despite counsel's failure to remind the judge that the juror was to be an alternate, as the result would have deprived defendant of his constitutional right to twelve fair and impartial jurors able to deliberate on all of the evidence. Such a result would be both clearly "capable of producing an unjust result," R. 2:10-2, and "structural," State v. Purnell, 161 N.J. 44, 60-61 (1999).

About an hour-and-a-half of cross-examination, redirect examination and recross-examination of Officer Pope occurred prior to the juror's being awoken. Our close review of the entire testimony of the officer reveals that much, if not all of the areas covered by this cross-examination and recross-examination was also covered during the prior day's extensive cross-examination and the recross-examination that occurred after the juror was awoken. Moreover, we note that much of the officer's testimony, both direct and cross, was read back to the jury in response to a jury question during deliberations. Only a small part of that, however, was from the one-and-one-half hours the juror may have slept through. On the other hand, it is impossible for us to discern from the record the demeanor of the witness in responding to the questions during this time period. Often a juror's sense of credibility of a witness is affected by how a witness responds as much as, if not more than, what the response is. Finally, as we have said, defense counsel did not renew her suggestion that the juror be designated an alternate. Perhaps this was for strategy reasons. If so, it would suggest that what the juror missed was not deemed to be particularly critical.

The point of all this is that we cannot discern from the record whether defendant, in effect, was deprived of twelve jurors fully conversant with the evidence, able to fairly and impartially deliberate. The appropriate course at this point is to remand for a post-verdict hearing, as was done in State v. Reevey, 159 N.J. Super. [130 (App. Div. 1978)] at 135. See also State v. Biscaccia, 139 N.J. Super. 1, 16 (App. Div. 1999).

On remand, the trial judge convened a hearing at which testimony was taken from the juror in question. After hearing oral argument, the judge ruled as follows:

I'm satisfied that there is no evidence that the Juror was unable to participate fully, in fact, he said he participated with the group and he deliberated. I believe if he slept for any length of time, it is something that could clearly produce an unjust result, but I'm satisfied that he did not sleep and an unjust result was not produced by his drowsiness.

I think this officer's testimony on direct, cross examination, redirect and recross, was comprehensive and was heard by the Juror, it was repeated, much of it was read back, and far from one and a half hours, which the Juror may have slept through according to the Appellate Division, on Page 12, I would say it's no more, again I say absolutely without any reservation, no more than a minute and a half.

And I regret that I didn't exclude this Juror or make him an alternate Juror. But I was satisfied at the time that he was ready, willing and able to participate in deliberations and I remain so satisfied and to deprive him of his opportunity to be a Juror and to deprive the defendant of the opportunity to have him be a Juror, I think would have been a greater, not injustice but impropriety, and that would have put me in a position of making determinations that I don't think were necessary. It might have appeared better had I done it, we wouldn't be here today had I done it, but I don't think that I did anything wrong in the context of the facts of this case.

Now, having my statement made, I want to hear if either counsel wishes to place anything on the record and then after everybody gets done, I'll hear from you Mr. Jones. I told you you could tell me whatever you wanted to tell me and if you don't want to speak, sir, you don't have to, I don't mean to tell you that you have to talk. Do you understand?

MR. JONES: Mm-mm.

THE COURT: But, [Prosecutor], do you want to - -

[PROSECUTOR]: Your Honor, I was only, say, several feet from the Juror when this occurred and he was about two o'clock from my vantage point and at the time I felt that he was asleep, when you called it to his attention, and I still believe that the Juror next to him did have to nudge him and he quickly lifted his head up. But like, Your Honor noted on the record, I don't believe he was asleep more than a few minutes, Judge, it was very short period of time.

. . . .

[THE COURT]: In this trial everything was repeated several times and so if he missed a minute and that critical element which you assert that he might have missed during that minute when he was asleep, and I won't say he wasn't asleep during that minute, a minute a half, but I believe it was that brief. I believe that everything that was said and everything that was done was repeated at other occasions during the trial, so as far as getting a coherent and complete and comprehensive picture of all the evidence, this Juror was privy to more than sufficient evidence and testimony.

And I find that there's no clear and convincing or no preponderance -- that even preponderance of the evidence, I find there's no proof that an injustice was done by virtue of this Juror's sleeping. I don't find any evidence of it, I don't believe that what happened here was clearly capable of producing an unjust result, in fact I believe the opposite, I believe he had more than adequate information to participate and he did participate fully and fairly and that's my ruling.

On appeal, defendant continues to argue that he was deprived of a fair trial by virtue of the trial judge's failure to replace the juror with an alternate. We have reviewed defendant's argument in light of the record and applicable law, which we surveyed in our initial opinion, and find his contention to be without sufficient merit to warrant extended discussion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by the trial judge in his oral ruling, quoted above. His factual findings are supported by the record, see State v. Locurto, 157 N.J. 463, 470-71 (1999), and his legal conclusion is sound.

 
Affirmed.

In that opinion, we rejected all of defendant's other arguments for reversal.

(continued)

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A-3956-05T4

 

May 24, 2007