STATE OF NEW JERSEY v. LESTER DENNARD
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3610-19
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
LESTER DENNARD,
Defendant-Appellant.
_______________________
Argued March 9, 2022 – Decided April 6, 2022
Before Judges Rothstadt and Natali.
On appeal from the Superior Court of New Jersey, Law
Division, Cumberland County, Indictment No. 19-07-
0646.
Zachary Markarian, Assistant Deputy Public Defender,
argued the cause for appellant (Joseph E. Krakora,
Public Defender, attorney; Zachary Markarian, of
counsel and on the briefs).
Daniel Finkelstein, Deputy Attorney General, argued
the cause for respondent (Matthew J. Platkin, Acting
Attorney General, attorney; Daniel Finkelstein, of
counsel and on the brief).
PER CURIAM
After a deliberating juror was dismissed for personal reasons, a
reconstituted jury found defendant guilty of four possessory weapons-related
offenses. The court sentenced defendant to an aggregate five-year custodial
term with a five-year period of parole ineligibility and assessed applicable fines
and penalties.
Before us, defendant argues:
POINT I
THE MUTUALITY OF JURY DELIBERATIONS
WAS DESTROYED BY THE TRIAL COURT'S
FAILURE TO CHARGE THE JURY TO START
ANEW BEFORE DELIBERATIONS BEGAN
FOLLOWING THE SUBSTITUTION OF AN
ALTERNATE.
POINT II
THE TRIAL COURT ERRED IN CHARGING THE
JURY REGARDING CONSTRUCTIVE
POSSESSION WHERE THE STATE'S CASE
DEPENDED ENTIRELY ON PROVING ACTUAL
POSSESSION AND THE STATE DID NOT
PRESENT ANY EVIDENCE OF "DOMINION OR
CONTROL" SUFFICIENT TO SUSTAIN A FINDING
OF CONSTRUCTIVE POSSESSION.
We agree with defendant's first point and are persuaded that the court's
failure to issue a timely instruction that clearly and unequivocally informed the
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reconstituted jury to begin its deliberations anew constituted plain error . We
accordingly vacate defendant's convictions and remand for a new trial. In light
of our decision, we do not reach defendant's second point.
I.
The Millville police arrested defendant after they saw him attempt to
secrete what they believed to be a weapon in a nearby vehicle. A Cumberland
County grand jury later charged defendant with second-degree unlawful
possession of a weapon, N.J.S.A. 2C:39-5(b)(1) (count one); fourth-degree
possession of a defaced weapon, N.J.S.A. 2C:39-9(e) (count two); fourth-degree
possession of a large capacity ammunition magazine, N.J.S.A. 2C:39-3(j) (count
three); and second-degree possession of a weapon by a convicted person,
N.J.S.A. 2C:39-7(b)(1) (count four).
We derive the following facts regarding defendant's arrest and conviction
from the trial record. In May 2019, Sergeant Jason Vinzinski, Sergeant Robert
Runkle, and Officer Israel Trejo of the Millville Police Department were on
patrol in an unmarked vehicle in the parking lot of an apartment complex. The
officers all recognized defendant from prior interactions, and also knew he was
not permitted to be at that particular location based on the apartment complex's
manager banning him from the premises.
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Defendant was seen standing with another individual next to two cars, and
talking to a woman, Talina Nottingham, who was sitting in the driver's seat of
one of the vehicles. Sergeant Vinzinski exited his vehicle and walked toward
defendant, who appeared surprised to see him. Defendant then reached near his
waist for what Sergeant Vinzinski and Officer Trejo observed to be a "black
object," entered Nottingham's car, placed the black object on the rear floor of
the vehicle, and exited.
Sergeant Vinzinski approached the car, shined a light inside and observed
a "black semiautomatic handgun" near the back seat. After Sergeant Vinzinski
announced he discovered a gun, defendant stated, unsolicited, that the gun was
not Nottingham's. He was immediately arrested.
Defendant's entry into the vehicle was confirmed by surveillance tape, as
well as Nottingham's trial testimony. Nottingham also testified that she was
unaware defendant was carrying a gun and was "surprised" the police found a
weapon in her car. A later analysis of the gun revealed it was operable, was
loaded with fifteen rounds of ammunition, and the serial number had been
defaced.
DNA testing of the weapon and magazine failed to produce a sample of
sufficient quality or quantity that would permit comparison with defendant's
A-3610-19
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DNA. Defendant testified at trial and admitted that he briefly entered
Nottingham's car, but denied possessing a gun, or that he removed anything from
his waistband.
After the close of all evidence the court charged the jury. The original
jury deliberated for approximately two hours and ten minutes over the course of
two days. During this time, it requested to view the original police report, as
well as a playback of the surveillance video, and asked to listen again to the
testimony of the three police officers and defendant.
On the second day of deliberations, at approximately 12:00 p.m., one of
the jurors informed the court that she received a text message that her father was
seriously ill. The court addressed the issue with the juror and the parties and
decided to dismiss the juror and replace her with an alternate.
After the court selected the alternate, it excused the now reconstituted jury
for lunch at 12:15 p.m. The court did not, however, charge the jury that they
should begin deliberations anew with the replaced juror. Instead, the court twice
told the jury that it should commence its deliberations immediately after it
returned from lunch at 1:15 p.m. The court specifically stated, "as soon as you
come back and as soon as you're all in the room, you can commence
deliberations; all right?" The court emphasized that point again by directing the
A-3610-19
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reconstituted jury to "commence your deliberations as soon as you're all back
and as soon as the jury room door is closed."
At approximately 1:40 p.m., the court went on the record to swear in a
new jury aide, at which time it observed that "apparently the jury has decided to
start deliberating." The court then asked the jury aide "to go instruct the jury to
stop deliberating because [it had] to give them one additional instruction." At
this point, over twenty-five minutes had elapsed since the reconstituted jury had
returned from lunch.
Before the jury aide could inform the reconstituted jury to stop
deliberating, it sent a note to the court. The court failed to mark the note as a
court exhibit or read its contents into the record. Instead, the court stated it
refused to even look at the note but commented nevertheless that "the jury is not
supposed to be telling me what their preliminary vote is."1
At 1:49 p.m., the court instructed the jury to stop deliberating because it
realized it failed to issue the necessary model jury instruction regarding
reconstituted juries and specifically the requirement that they begin
1
As the jury's note is not part of the appellate record, and the court maintained
it did not look at the communication, we cannot discern the basis for the court's
substantive comment that the jury should not have told it of any preliminary
vote.
A-3610-19
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deliberations anew. The court explained its oversight by noting it had "never
had to empanel an alternate juror" before, and although it "knew there was a[n
applicable] charge," it "couldn't . . . remember what it was."
The court then provided the reconstituted jury with Model Jury Charge
(Criminal), "Judge's Instructions When Alternate Juror Empaneled After
Deliberations Have Begun" (rev. March 14, 2016), which informed the jury,
among other instructions, that they "must start [their] deliberations over again"
with the alternate juror. At 1:55 p.m., the jury resumed deliberations.
After the reconstituted jury left the courtroom, defense counsel moved for
a mistrial on two grounds. First, counsel noted the dismissed juror was the only
Black juror on the original jury, and the reconstituted jury was now all white.
Defendant argued the new racial composition of the panel was unfair, as he is
Black, and had a right to be judged by a jury of his peers. Second, counsel raised
a concern that the dismissed juror had clearly received an outside
communication, as she could not otherwise have learned of her father's medical
condition, and may have relayed information to the other jurors, contrary to the
court's general instructions.
The court denied defendant's motion and concluded that the
"communication with somebody outside the courthouse . . . in this day and age
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is not all that unusual." It further determined that the lack of diversity on the
reconstituted jury was not due to any "sinister or improper motive" on the part
of the State, but rather, was the result of a lack of diversity in the original jury
pool.
At 2:40 p.m., approximately forty-five minutes after the court gave the
appropriate model jury instruction, the reconstituted jury reached a verdict and
convicted defendant of counts one through three. The same jury later found
defendant guilty on count four, after deliberating for an additional five minutes.
The court sentenced defendant on count one to five years imprisonment
with three-and-a-half years of parole ineligibility pursuant to the Graves Act,
N.J.S.A. 2C:43-6(c), and merged count two with count one. The court also
imposed an eighteen-month term on count three and a five-year term with a five-
year period of parole ineligibility on count four, ordered all terms to run
concurrently, and assessed applicable fines and penalties. This appeal followed.
II.
In defendant's first point, he argues the court failed to charge properly the
reconstituted jury "before its deliberations began [which] critically damaged the
integrity of the deliberative process." He further contends the court's later
instruction was inadequate because by the time the court properly instructed the
A-3610-19
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jury in accordance with the model charge, the reconstituted jury "had already
engaged in a substantive discussion of the case and had even taken a preliminary
vote." 2 We agree.
Rule 1:8–2(d)(1) vests in the trial court the discretion to retain alternate
jurors after deliberations begin, to excuse a juror who is unable to continue, and
to substitute an alternate for the excused juror. If a new juror is empaneled after
the initial jury has commenced deliberations, the court is required to instruct the
reconstituted jury to deliberate anew. As the Rule provides:
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. 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.
[Id. (emphasis added).]
2
We note that defendant has not renewed the arguments raised in support of his
motion for a mistrial, and instead limits his contentions to those errors in the
court's jury instructions as detailed in points one and two. We limit our
discussion accordingly.
A-3610-19
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"The Rule attempts to strike a balance between the need for judicial
economy, especially in the context of lengthy trials, and the fundamental right
of defendants to a fair trial by jury." State v. Valenzuela, 136 N.J. 458, 467
(1994). Errors in the sensitive area of jury substitution are "cognizable as plain
error." State v. Corsaro, 107 N.J. 339, 346 (1987). This is so because "[t]he
constitutional guarantee of a jury trial in criminal causes . . . is violated unless
the verdict is the product of [twelve] jurors who have heard all the evidence and
arguments and who have deliberated together to reach a unanimous decision."
State v. Lipsky, 164 N.J. Super. 39, 45 (App. Div. 1978); see also State v. Trent,
79 N.J. 251, 257 (1979); State v. Milton, 178 N.J. 421, 432 (2004) ("As an
essential component of an accused's right to a jury trial, the right to a unanimous
verdict is firmly rooted in our rules of procedure and our decisional law.").
Our Supreme Court has affirmed that substituting a juror after
deliberations have begun does not offend the Constitution. See State v. Miller,
76 N.J. 392, 406-07 (1978). In doing so, however, the Court emphasized the
need to assure that the reconstituted jury starts deliberations anew and to clearly
instruct it accordingly. Ibid. Specifically, the Miller Court explained:
We find that Rule 1:8–2(d) in providing that for good
cause shown, an alternate juror may be substituted for
a regular juror after deliberations have begun, does not
offend our constitutional guaranty of trial by jury.
A-3610-19
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Certainly good cause appeared when the juror in
question stated that in his then nervous and emotional
condition, he did not think he could render a fair
verdict. Of course, when an alternate juror is so
substituted, the jury must be instructed in clear and
unequivocal terms that it is to begin its deliberations
anew and that, as the trial judge stated herein, "you are
in effect going to have to start over."
[Ibid.]
As our Supreme Court further observed in Trent:
It is not enough that [twelve] jurors reach a unanimous
verdict if [one] juror has not had the benefit of the
deliberations of the other [eleven]. Deliberations
provide the jury with the opportunity to review the
evidence in light of the perception and memory of each
member. Equally important in shaping a member's
viewpoint are the personal reactions and interactions as
any individual juror attempts to persuade others to
accept his or her viewpoint. The result is a balance
easily upset if a new juror enters the decision-making
process after the [eleven] others have commenced
deliberations. The elements of number and unanimity
combine to form an essential element of unity in the
verdict. By this we mean that a defendant may not be
convicted except by [twelve] jurors who have heard all
the evidence and argument and who together have
deliberated to unanimity.
[Trent, 79 N.J. at 256 (quoting People v. Collins, 552 P.2d 742, 746 (Cal. 1976), cert. denied, 429 U.S. 1077
(1977)).]
A-3610-19
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Because a clear and unequivocal instruction is essential to assure that all
twelve members of the reconstituted jury deliberate together, the Trent Court
adopted the prescriptions set forth by the California Supreme Court in Collins:
[T]he court [should] instruct the jury to set aside and
disregard all past deliberations and begin deliberating
anew. The jury should be further advised that one of
its members has been discharged and replaced with an
alternate juror as provided by law; that the law grants
to the People and to the defendant the right to a verdict
reached only after full participation of the 12 jurors
who ultimately return a verdict; that this right may only
be assured if the jury begins deliberations again from
the beginning; and that each remaining original juror
must set aside and disregard the earlier deliberations as
if they had not been had.
[Trent, 79 N.J. at 256 (quoting Collins, 552 P.2d at
747).]
Our model criminal jury charge embodies these dictates and instructs as
follows:
As you know, Juror # _____ was excused from the jury.
An alternate juror has been selected to take his/her
place. The reason that he/she was excused was entirely
personal to him/her; it had nothing to do with his/her
views on this case or his/her relationship with the other
members of the deliberating jury. Please do not
speculate on the reason why that juror was excused.
As of this moment, you are a new jury, and you must
start your deliberations over again. The parties have the
right to a verdict reached by twelve jurors who have had
the full opportunity to deliberate from start to finish.
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The alternate juror has no knowledge of any earlier
deliberations. Consequently, the new deliberating jury
must start over at the very beginning of deliberations.
Each member of the original deliberating jury must set
aside and disregard whatever may have occurred and
anything which may have been said in the jury room
following my instructions to you. You must give no
weight to any opinion expressed by Juror # _____
during deliberations before that juror was excused.
Together, as a new jury, you must consider all evidence
presented at trial as part of your full and complete
deliberations until you reach your verdict.
[Model Jury Charge (Criminal), "Judge's Instructions
When Alternate Juror Empaneled After Deliberations
Have Begun" (rev. March 14, 2016).]
After considering the aforementioned authority, we are satisfied that the
court failed to express in "clear and unequivocal terms," see Miller, 76 N.J. at
407, that the reconstituted jury should begin deliberations anew. By giving the
model instruction after the reconstituted jury had already begun their
deliberations, the court failed to create "an environment so that the mutual or
collective nature of the jury's deliberations is preserved and remains intact until
a final determination is reached." Corsaro, 107 N.J. at 349. As a result,
defendant's convictions and sentences must be vacated.
We reach this conclusion because it is undisputed that the jury deliberated
for over twenty-five minutes without being advised to restart its deliberations.
While this period may appear insubstantial, it represented over thirty percent of
A-3610-19
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the entire time the reconstituted jury considered the proofs before it reached a
verdict. During that period, the reconstituted jury sent a note to the court which
led the court to at least posit that a preliminary vote had been taken.
Further, the original jury had already deliberated for over two hours
without the alternate juror and made three requests to review certain evidence,
which increased the likelihood that the original jurors may have resolved certain
issues, with those incumbent jurors possibly finding it difficult to clear their
minds of any progress already achieved. In light of these facts, we refuse to
speculate that despite the court's clarifying instruction, the jury did indeed begin
deliberations anew, simply because it deliberated for another fifty minutes.
Finally, we conclude the court committed error when it refused to read
into the record or mark as an exhibit the jury's note. It is well settled that the
"correct technique is to require the jury to put its question in writing, for the
judge to place it on the record and to give the attorneys an opportunity to be
heard as to the proposed answer, and then to have the jury return to the
courtroom to be further instructed accordingly." Pressler & Verniero, Current
N.J. Court Rules, comment 7 on R. 1:8–7 (2022); see also United States v.
Ronder, 639 F.2d 931, 934 (2d Cir. 1981) (A trial judge should normally follow
a four-step procedure when responding to a jury inquiry: the jury's question
A-3610-19
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should be submitted in writing, the court should mark the question as an exhibit
and read it into the record, counsel should be afforded an opportunity to suggest
appropriate responses and, if the question addresses a substantive matter, the
question should be read into the record in the jury's presence.).
Instead of following these procedures, the court apparently refused to read
the note, but nevertheless observed that it would not accept any "preliminary
vote" from the jury, which, as defendant contends, suggests the content of the
note was communicated to the court, and further that it reflected the advanced
state of the reconstituted jury's deliberations prior to receiving the correct model
jury instructions. We acknowledge that we cannot determine with any certainty
the substance of the jury's note to the court. That lack of clarity, however, should
not result in any detriment to defendant, as it was caused by the failure of the
court to read the note or mark it as an exhibit, effectively hindering our review.
In light of our decision, we do not address defendant's remaining argument
regarding the propriety of the court's jury instructions concerning constructive
possession.
Vacated and remanded for a new trial.
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