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October 27, 2014


Argued August 26, 2014 Decided

Before Judges Hayden and Leone.

On appeal from Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-2052-11.

Robert Y. Cook argued the cause for appellant (Levinson Axelrod, attorneys; Mr. Cook, on the briefs).

Bryan T. Kurtzberg argued the cause for respondent (Law Offices of Cindy L. Thompson, attorneys; Mr. Kurtzberg, on the brief).


Plaintiff Keelie Cruz appeals the denial of her motion for a new trial, citing an alleged comment by a juror. We affirm.


Plaintiff's vehicle was rear-ended by the vehicle of defendant Eli Donath. Plaintiff sued, defendant stipulated to negligence, and the case went to trial on damages only. The trial court empanelled a jury of six jurors and one alternate juror, which heard evidence on two days.

On the second day, the jury deliberated for about an hour until 4:30 p.m. The court asked the jury if deliberating another half hour would result in a resolution. The foreman, Juror #1, reported the jurors were "unable to reach a decision on that question." The jurors left for the night.

Late that night, and the next morning, Juror #1 left messages with court staff that he had something to bring to the court's attention. Juror #1 told the court and counsel that as the jurors were leaving the courthouse for the night, Juror #5 approached Juror #1. Juror #5 opened his wallet, showed money, and said "I'll give you this if you just basically go along with the majority or a certain vote so we can get done with the matter quick." Juror #1 felt Juror #5 "almost kind of tried to sway [him] to go to their side." The interaction lasted only a few seconds, and was directed solely to Juror #1. Juror #1 said "another juror did see. I don't know if he really saw it."

Defense counsel expressed concern that Juror #1 may be tainted and unable to deliberate in good faith. Plaintiff's counsel did not "see it the same way." He did not "get the feeling [Juror #1] was changing his mind because of the incident."

Both counsel agreed with the court that the proper course was to ask each juror separately if they were aware of anything happening, and if they could be fair and impartial. Juror #1 said nothing occurred that affected his ability to deliberate in a fair fashion. The other jurors stated they did not observe any questionable conversation between jurors, and that they could be fair and impartial. In particular, Juror #5 said he had no conversations with any other juror that could be "construed as case related," just about "we're extending [deliberations] and stuff like that."

After the jury resumed deliberations, plaintiff's counsel stated his position that both Juror #1 and Juror #5 should be removed. When the court noted that removing two jurors would impermissibly reduce the number of available jurors to less than six, defense counsel moved for a mistrial.

The court asked "Plaintiff, what do you want; do you want a mistrial?" Plaintiff's counsel responded: "I don't know that that's necessary, Judge." Plaintiff's counsel then stated: "I'm taking no position on a mistrial. I think the integrity of the process in there has been tainted by whatever may have or allegedly occurred between the two individual jurors."

The court noted that all of the jurors said they could continue to be fair and impartial, and that none of the jurors, other than Juror #1, was aware of any improper conduct. The court did not find "what has occurred here as a basis to remove both jurors from the case, particularly where it would result in a mistrial."

The court observed that while defendant was "asking for a mistrial, the plaintiff is not." Plaintiff's counsel reiterated that "I'm taking no position on the mistrial, Judge. I just want it noted that I'm just not comfortable with those two jurors remaining in deliberations."

Both counsel told the court they would not object to proceeding with five jurors, and they began a discussion of whether the five jurors would have to be unanimous. Before they could agree, the jury reached a verdict after about fifty minutes of deliberations that morning. Defense counsel stated that, if the court was denying a mistrial, the verdict should be taken. Plaintiff's counsel agreed, noting again "[j]ust for the record I'm not comfortable with the two jurors remaining on here."

By a vote of five to one, the jury found that plaintiff had not proven that she sustained a permanent injury proximately caused by the accident. A poll revealed that Juror #1 cast the dissenting vote. The court dismissed the complaint with prejudice by order filed September 11, 2013.

Plaintiff moved for a new trial. The trial court reiterated that only Juror #1 said such a comment was made, that no other juror heard any such comment, and that all jurors said they could be fair and impartial. The court found that the alleged comment to Juror #1 was not a statement that a juror was "actually going to pay you money to change your vote. It was frustration that they hadn't reached a verdict and had to come back the next day." The court also found that "if that comment was made, . . . it didn't affect the foreman because he didn't change his vote." The court found that plaintiff "had a very difficult case," that "the verdict was very much consistent with the evidence," and that plaintiff "got a fair jury determination." The court denied a new trial in an order filed October 11, 2013. Plaintiff appeals.


At trial, plaintiff's position was that the court should remove Juror #1 and Juror #5 from the jury, and allow the five remaining jurors (including the alternate juror) to deliberate and reach a verdict. As the trial court pointed out, such a remedy is not permitted under the rules. "Juries in civil cases shall consist of 6 persons" or more. N.J.S.A. 2B:23-1(b); see N.J. Const. art. I, 9. A court may excuse jurors prior to deliberations "provided the number of jurors is not reduced to less than" six in a civil case. R. 1:8-2(d)(1). The rule expressly states that "[a] deliberating jury in a civil action shall consist of six persons[.]" R. 1:8-2(b). The only time fewer jurors are allowed to deliberate is if "fewer than six jurors remain prior to commencement of deliberations and the parties then agree on the record to submit the case to the remaining jurors[.]" R. 1:8-2(b)(2). Here, more than six jurors remained, and no agreement to accept fewer jurors was made, prior to the commencement of deliberations. See also R. 1:8-2(c)(1) (requiring an agreement "on the record prior to commencement of deliberations to accept a verdict or finding by a lesser number" than "five jurors when six jurors deliberate"). The trial court did not err by following the rules. See LaManna v. Proformance Ins., 184 N.J. 214, 223 (2005) ("our trial courts should comply fully with Rule 1:8-2").

Indeed, the Supreme Court amended Rule 1:8-2 in 1998 to eliminate language that "the parties shall be deemed to have stipulated that in the event one juror is excused, the trial shall proceed and a verdict may be rendered by 5 of the jury." R. 1:8-2(c) (1994). The amended rule "makes clear there is no implied stipulation," that "[t]he parties must agree to deliberations by the reduced jury" on the record, and that they may do so only "as long as it is before the commencement of deliberations." Pressler, Current N.J. Court Rules, comment 3 on R. 1:8-2(b) (1999); see Lamanna v. Proformance Ins. Co., 364 N.J. Super. 473, 476-77 (App. Div. 2003), aff d, 184 N.J. 214, 222-23 (2005).

Moreover, in the absence of a complete agreement on how many jurors had to deliberate and agree, "five jurors alone can[not] deliberate and render a valid verdict[.]" Petrolia v. Estate of Nova, 284 N.J. Super. 585, 592 (App. Div. 1995), certif. denied, 143 N.J. 516 (1996); see LaManna, supra, 184 N.J. at 226; Mahoney v. Podolnick, 168 N.J. 202, 215 (2001); Walder, Sondak, Berkeley, & Brogan v. Lipari, 300 N.J. Super. 67, 81 (App. Div.), certif. denied, 151 N.J. 77 (1997). No complete agreement was reached here before the jury returned its verdict.

Further, as the trial court noted, there are limits on a judge's ability to remove a deliberating juror. A "'juror's interaction with the other jurors'" is not a basis for replacing a deliberating juror with an alternate. State v. Ross, 218 N.J. 130, 147 (2014) (quoting State v. Williams, 171 N.J. 151, 163 (2002)). The Supreme Court has "forbidd[en] juror substitution when a deliberating juror's removal is in any way related to the deliberative process." State v. Jenkins, 182 N.J. 112, 124 (2004). Plaintiff therefore cannot show the court erred in rejecting her proposal to remove the two deliberating jurors, to substitute an alternate, and to proceed with five jurors.


Plaintiff now claims that the trial court should have granted a mistrial. However, she did not move for a mistrial. Indeed, she repeatedly refused to join defendant's mistrial motion.

Defendant argues plaintiff now is barred from raising a mistrial claim. Plaintiff cites the court's statement to both counsel prior to the verdict that "any applications you have would be preserved," but she had made no application for a mistrial. Plaintiff's "'belated effort to raise [an] issue on motion for a new trial does not entitle [her] to avoid the plain error standard of review.'" State v. Patterson, 435 N.J. Super. 498, 509 (App. Div. 2014).

"'It is a well-settled principle that [New Jersey] appellate courts will decline to consider questions or issues not properly presented to the trial court when an opportunity for such a presentation is available unless the questions so raised on appeal go to the jurisdiction of the trial court or concern matters of great public interest.'" State v. Robinson, 200 N.J. 1, 20 (2009) (quoting Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973)). However, we "retain the inherent authority to 'notice plain error not brought to the attention of the trial court,' provided it is 'in the interests of justice" to do so.'" Ibid. (quoting R. 2:10-2). Here, we consider whether plaintiff can show her mistrial claim merits relief in the interests of justice.


We do not believe that plaintiff can show it would be "in the interests of justice" to allow her to demand a mistrial she refused to request, to overturn a verdict which she agreed should be taken. R. 2:10-2. A party should not be permitted to take a chance on a verdict by one jury and then complain if the verdict is unfavorable. LaManna, supra, 364 N.J. Super. at 476. "'To do so would condone a tactic of . . . awaiting the outcome, and then raising the issue on appeal when the outcome is unfavorable.'" Id. at 477-78 (quoting Walder, supra, 300 N.J. Super. at 82).

In LaManna, we held that "'[s]ince a 6-2 verdict in a civil case may be agreed to by the parties, a party who fails to object in a timely manner to submission of the case to the jury on that basis cannot thereafter rely on the plain error rule, R[ule] 2:10-2.'" LaManna, supra, 184 N.J. at 219 (quoting LaManna, supra, 364 N.J. Super. at 478). We ruled that such an error "was not clearly capable of producing an unjust result." Id. at 228 (citing LaManna, supra, 364 N.J. Super. at 475-78). The Supreme Court agreed with our "thorough reasoning and [our] conclusion to reject plaintiff's plain error argument." Ibid.

Those concerns are heightened here. Where a party has not requested a mistrial, a court which grants a mistrial risks a claim from that party that the court improperly deprived that party of the chance for a verdict from the jurors in the first trial. Further, plaintiff was not merely silent, but repeatedly refused, when asked by the court, to take a position on defendant's mistrial motion. Plaintiff's refusal does not entitle her to attack the trial court regardless of how it ruled on defendant's mistrial motion, after waiting to see if the verdict is favorable. Thus, plaintiff cannot raise the denial of a mistrial under the plain error rule.


In any event, plaintiff cannot show that the denial of a mistrial was "clearly capable of producing an unjust result." R. 2:10-2. "Under that standard, [plaintiff] has the burden of proving that the error was clear and obvious and that it affected [her] substantial rights." State v. Morton, 155 N.J. 383, 421 (1998). We must hew to our standard of review.

Further, we must consider that "the trial court is in the best position to determine whether the jury has been tainted", State v. R.D., 169 N.J. 551, 559 (2001). The decision to declare a mistrial is committed to its sound discretion, and "[t]he abuse of discretion standard of review should pertain when reviewing such determinations of a trial court." Id. at 558-59. Similarly, "[t]he decision to grant a new trial based on jury taint resides in the discretion of the trial court." Id. at 558. A denial of a motion for a new trial "will not be disturbed unless that discretion has been clearly abused." Quick Chek Food Stores v. Springfield, 83 N.J. 438, 445-46 (1980). An appellate court should not reverse unless, "'giving due deference' to the trial court's 'feel of the case'" and "'due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a miscarriage of justice under the law.'" Risko v. Thompson Muller Auto. Group, Inc., 206 N.J. 506, 521 (2011); see R. 4:49-1(a).

The trial court found that if Juror #5 made the alleged comment, it was not an actual offer of a bribe to change Juror #1's vote. Cf. N.J.S.A. 2C:27-1(g), 2C:27-2; State v. Steneck, 118 N.J.L. 268, 275-76 (Sup. Ct. 1937), aff d, 120 N.J.L. 188 (E. & A.), cert. denied 305 U.S. 627, 59 S. Ct. 89, 83 L. Ed. 401 (1938). Rather, the court found that any such comment was said out of "frustration that they hadn't reached a verdict and had to come back the next day." "It is to be expected that in the interplay of personalities attending a jury's deliberations there will be occasions when some jurors will give vent to feelings of exasperation or frustration." State v. Athorn, 46 N.J. 247, 253, cert. denied, 384 U.S. 962, 86 S. Ct. 1589, 16 L. Ed. 2d 674 (1966); see State v. Young, 181 N.J. Super. 463, 469 (App. Div. 1981).

Indeed, the trial court correctly found the alleged comment did not cause Juror #1 to change his vote. Further, the court found that no other juror heard any improper comment. Thus, the alleged comment had no actual effect.

Plaintiff argues that the test is not whether the misconduct actually influenced the results but whether it had the capacity to do so. She cites Panko v. Flintkote Co., 7 N.J. 55, 61 (1951), which states

It is well settled that the test for determining whether a new trial will be granted because of the misconduct of jurors or the intrusion of irregular influences is whether such matters could have a tendency to influence the jury in arriving at its verdict in a manner inconsistent with the legal proofs and the court's charge. If the irregular matter has that tendency on the face of it, a new trial should be granted without further inquiry as to its actual effect. The test is not whether the irregular matter actually influenced the result, but whether it had the capacity of doing so.

Although Panko references juror misconduct, Panko and its progeny largely address "extraneous" irregular influences from outside the jury. Id. at 60-62 (a juror's relative told him the defendant was insured); see State v. R.D., 169 N.J. 551, 559 (2001). However, as the trial court found, this is "not a case of information coming in to taint the jury or anything of that sort." Even if the same standard governs claims of error where the alleged juror misconduct involves not extraneous information but merely the interchanges between deliberating jurors, here we are addressing a claim of plain error. Assuming "evidence of actual influence is not needed" to show error, Brown v. Kennedy Mem'l Hosp.-Univ. Med. Ctr., 312 N.J. Super. 579, 590 (App. Div. 1998), the absence of such evidence remains relevant to a plain error inquiry.

Most importantly, the court credited the testimony of all the jurors, including Juror #1, that they could be fair and impartial. The court also found that plaintiff "got a fair jury determination." Thus, the court relied on its "'own objective evaluation of the potential for prejudice rather than on the jurors' subjective evaluation of their own impartiality.'" State v. McGuire, 419 N.J. Super. 88, 153-54 (App. Div.), certif. denied, 208 N.J. 335 (2011) (quoting State v. Scherzer, 301 N.J. Super. 363, 487-88 (App. Div.), certif. denied, 151 N.J. 466 (1997)). Even if "the judge may have relied in part on the jurors' subjective belief in their own impartiality, he clearly made his own judgment of the jurors' credibility." Scherzer, supra, 301 N.J. Super. at 491.

Finally, the court found no evidence the verdict was tainted, as it was "very much consistent with the evidence." Plaintiff alleged she suffered a disc bulge and a disc herniation at the same spinal joints where she suffered similar injuries from a previous accident, but she did not plead aggravation of those injuries. The verdict thus gave no reason to believe the alleged comment "'influence[d] the jury in arriving at its verdict in a manner inconsistent with the legal proofs and the court's charge.'" McGuire, supra, 419 N.J. Super. at 154; see Leslie Blau Co. v. Alfieri, 157 N.J. Super. 173, 207 (App. Div. 1978).

Plaintiff now argues that the court's inquiry of the jurors was too limited, and that there should have been detailed questioning of the two jurors allegedly involved in the conversation. However, counsel agreed with the court on the questions the court asked, and neither counsel had anything to add or suggest when the court's inquiry was completed.

"We traditionally have accorded trial courts deference in exercising control over matters pertaining to the jury." R.D., supra, 169 N.J. at 559-60. If the court had gone further in questioning Juror #5 and the other jurors, "inappropriate information could be imparted." Id. at 561. Even if "further questioning of the juror[s] would have revealed more precisely" what occurred, "the trial court's failure to do so did not constitute plain error." Id. at 563.

Here, "[t]he questioning of the jurors was adequate and produced credible assurances from each juror that nothing said . . . would adversely affect their ability and willingness to decide the case fairly and in accordance with the law as explained by the judge in his charge." State v. Nelson, 318 N.J. Super. 242, 256 (App. Div.), certif. denied, 158 N.J. 687 (1999) (finding such inquiry adequate to cure lawyer-juror's redefinition of legal terms); see State v. McLaughlin, 310 N.J. Super. 242, 255-56 (App. Div.) (jurors' premature deliberations), certif. denied, 156 N.J. 381 (1998); Scherzer, supra, 301 N.J. Super. at 488-91 (juror's group prayer for the victim); cf. Barber v. ShopRite of Englewood & Assocs., Inc., 406 N.J. Super. 32, 54-55 (App. Div.) (no questioning of the jurors until a year after the trial), certif. denied, 200 N.J. 210 (2009). Plaintiff argues either Juror #1 or Juror #5 was lying to the trial court. It is unfortunate that the trial court, which was in a superior position to determine credibility, did not determine whether the comment was in fact made, and whether it was Juror #1 or Juror #5's account that was accurate. However, on plain error review, plaintiff cannot show that any inaccuracy in the jurors' colloquy was "clearly capable of producing an unjust result" in the trial. R. 2:10-2.

"[D]ue process does not require a new trial every time a juror has been placed in a potentially compromising situation. Were that the rule, few trials would be constitutionally acceptable." Smith v. Phillips, 455 U.S. 209, 217, 102 S. Ct. 940, 946, 71 L. Ed. 2d 78, 86 (1982); see R.D., supra, 169 N.J. at 559. "[I]t is virtually impossible to shield jurors from every contact or influence that might theoretically affect their vote. Due process means a jury capable and willing to decide the case solely on the evidence before it, and a trial judge . . . to determine the effect of such occurrences when they happen." Ibid.; accord McGuire, supra, 417 N.J. Super. at 449. Because the trial court found the jury was able to and did decide the case on the evidence before it, plaintiff cannot show plain error.