(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for
the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not have been summarized).
Argued January 5, 1994 -- Decided July 13, 1994
STEIN, J., writing for a unanimous Court.
The issue before the Court on appeal is whether the trial court properly exercised its discretion in
discharging a juror and substituting an alternate juror after the jury had begun deliberations.
Rafael Valenzuela was indicted on charges of first-degree aggravated sexual assault and second-degree robbery stemming from his alleged rape of a female acquaintance. At the close of the State's case,
the trial court reduced the robbery charge to the lesser-included offense of fourth-degree theft and also
reduced the first-degree aggravated-sexual-assault charge to second-degree sexual assault.
Prior to jury deliberations, the court instructed the jury on the applicable law and reduced the
fourteen member jury panel to twelve members by selecting by lot the names of two jurors. The court
designated those jurors, in the order they were selected, as the first and second alternate jurors. The
alternate jurors were retained in a separate location from the jury during deliberations.
About fifty minutes into its deliberations, the jury sent a note out to the court stating that one
member "doesn't want to be" a juror. The court questioned Juror No. 9 out of the presence of the other jury
members about her ability to perform her function as a juror. After completing the questioning of the juror
and conferring with counsel, the court determined to leave Juror No. 9 on the jury, stating that the record
did not contain enough information to warrant her removal. The court instructed the jury to return to the
jury room, to discuss the case, and to apply the law to the facts in an effort to reach a decision.
Less than a half hour later, the court received a second note from the jury telling the court that
Juror No. 9 does not understand the process and "continues to change her plea every ten seconds" and that
she is very confused. Again, the court questioned Juror No. 9 out of the presence of the other jurors. After
completing its questioning, the court, over defense counsel's objection, removed Juror No. 9. The court
found that the jury's note indicates that Juror No. 9 is not able to function as a juror. The court also noted
that the juror had been observed talking to herself and that, based on the observation of the juror and her
responses to his questions, she is "somewhat, bizarre," and unable to fulfill the functions of a juror.
The court dismissed Juror No. 9 on its own motion because it considered her to be "unable to
continue," under the language of Rule 1:8-2(d). The court directed the juror who had been designated the
first alternate to take Juror No. 9's place. The court instructed the reconstituted jury that it must begin work
"anew." Fifty-five minutes thereafter, the jury returned its verdict, finding Valenzuela guilty of sexual assault
and not guilty of theft. Valenzuela was sentenced to ten years' imprisonment with a four-year period of
parole ineligibility.
On appeal, the Appellate Division reversed the conviction, finding that the trial court had improperly
discharged the juror because the record did not clearly evidence that the excused juror was ill or otherwise
unable to continue. On the basis of that error, as well as the trial court's failure to have the court clerk
select a substitute juror by lot, and the substitution of an alternate juror after the remaining eleven jurors
had progressed in deliberations to a stage approaching agreement on a verdict, the Appellate Division
reversed Valenzuela's conviction and remanded for a new trial.
The Supreme Court granted the State's petition for certification.
HELD: A juror cannot be discharged as "unable to continue" deliberations unless the record adequately
establishes that the juror suffers from an inability to function that is personal and unrelated to
the juror's interaction with other jury members. The record in this case does not clearly indicate
that the juror was "unable to continue;" it can be implied from the record that the juror's
problems related not only to personal circumstances but also to factors arising from the juror's
interactions with other jurors. Therefore, the trial court abused its discretion in discharging
Juror No. 9.
1. Rule 1:8-2(d) governs the empaneling of additional jurors and the discharge and substitution of
jurors. Concerning dismissal of a juror after deliberations have begun, the court is to direct the clerk to
draw the name of an alternate juror to take the place of a discharged juror. In addition, the court is to
instruct the jury to begin deliberations anew. The purpose of the Rule is to strike a balance between the
need for judicial economy and the fundamental right of defendants to a fair trial by jury. It is a last resort
mechanism to avoid a waste of time and expense inherent in a mistrial. (pp. 10-12)
2. The "unable to continue" language is to be strictly construed and must ordinarily be limited to
compelling circumstances that are exclusively personal to the juror in question. A trial court cannot
discharge a juror because the juror is at odds with the rest of the jury. The appropriate course when a juror
indicates that the jury is deadlocked is for the court to inquire whether further deliberation will likely result
in a verdict and, if not, the court should declare a mistrial. (pp. 12-15)
3. The trial court dismissed Juror No. 9 even though she stated that she understood her function, that
she was willing to abide by her oath, and that she was willing to apply the law. Although the juror stated
that she was going back and forth in her vote, she did not suggest that she wanted to vote for the same
outcome as the other jury members. The record also contains evidence that the circumstances leading to the
jury's and the juror's desire for discharge may have arisen from interactions in the jury room, indicating that
she held a different position from that of the other jurors. Thus, the court did not reasonably exercise its
discretion in removing Juror No. 9. (pp. 15-17)
4. The record on which a court may excuse a deliberating juror must reveal with greater clarity that a
juror cannot proceed with deliberations and fulfill the functions of a juror, particularly when the record
contains any suggestion that the problems regarding the juror stem from interactions with the other jurors
and not from circumstances personal to the juror. In this case, whether Juror No. 9's inability to decide the
case with the other jurors resulted from factors personal to her, from failure of the State to meet its burden
of proof, or from her disagreement with the other jurors was never established. (pp. 17-19)
5. Because of its conclusion that the trial court improperly discharged Juror No. 9, the Court need not
decide whether the jury had progressed too far in its deliberations to permit the substitution of an alternate
juror and whether the procedure the trial court employed in selecting the substitute juror was prejudicially
defective. However, it is noted that, in selecting substitute jurors, trial courts should follow the procedure
prescribed in Rule 1:8-2(d) to avoid the appearance of a preference for one alternate over the other.
Moreover, determining whether substitution can take place at a given point in the deliberations concerns not
only the length of time that the jury has deliberated but the effect that the progress the deliberations will
have on the reconstituted jury's ability truly to begin deliberations anew. (pp. 19-22)
Judgment of the Appellate Division is AFFIRMED.
CHIEF JUSTICE WILENTZ and JUSTICES CLIFFORD, HANDLER, POLLOCK, O'HERN and
GARIBALDI join in JUSTICE STEIN's opinion.
SUPREME COURT OF NEW JERSEY
A-
45 September Term 1993
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
RAFAEL VALENZUELA,
Defendant-Respondent.
Argued January 5, 1994 -- Decided July 13, 1994
On certification to the Superior Court,
Appellate Division, whose opinion is reported
at
262 N.J. Super. 392 (1993).
Carol M. Henderson, Deputy Attorney General,
argued the cause for appellant (Robert J. Del
Tufo, Attorney General of New Jersey,
attorney).
Cynthia N. McKee, Designated Counsel, argued
the cause for respondent (Zulima V. Farber,
Public Defender, attorney).
The opinion of the Court was delivered by
STEIN, J.
In this appeal we consider whether the trial court properly exercised its discretion pursuant to Rule 1:8-2(d) in discharging a juror and substituting an alternate juror after the jury had begun deliberations. The reconstituted jury convicted defendant of second-degree sexual assault and acquitted him of fourth-degree theft. The Appellate Division reversed the conviction,
citing as errors the dismissal of a juror who was not clearly
unable to continue, the court's failure to choose by lot which
alternate juror would replace the dismissed juror, and the
substitution of a juror at a stage in the deliberations when it
appeared the other eleven jurors had reached agreement.
262 N.J. Super. 392, 398 (1993). The Appellate Division, concluding
that the cumulative weight of those errors warranted reversal,
remanded for a new trial. Id. at 400. We granted the State's
petition for certification,
133 N.J. 446 (1993).
A grand jury indicted defendant, Rafael Valenzuela, on charges of first-degree aggravated sexual assault and second-degree robbery stemming from his alleged rape of a young woman acquaintance who had agreed to accompany him to a Department of Motor Vehicles office to act as an interpreter. The trial progressed for three days before a fourteen-member jury panel. At the close of the State's case, the trial court, finding no evidence that force had been used during the alleged theft of $500 from the victim's coat pocket, reduced the robbery charge to the lesser-included offense of fourth-degree theft and also reduced the first-degree aggravated-sexual-assault charge to second-degree sexual assault.
The defense rested on the third day of trial. After instructing the jury on the applicable law, the trial court
reduced the jury to twelve members by selecting by lot the names
of two jurors. The court designated those jurors, in the order
they were selected, as the first and second alternate jurors.
The jury left the courtroom to deliberate at 11:10 a.m. The
court retained the alternate jurors in a separate location,
stating, "You might be needed if somebody becomes ill on the
jury." Fifty minutes later the jury sent a note out to the court
to the effect that one member "doesn't want to be" a juror. The
court brought the jury out, determined that Juror Number 9 was
the reluctant juror, and then questioned Juror Number 9 out of
the presence of the other jury members.
THE COURT: Miss Pollack, do I take it
right that you don't want to participate?
MISS POLLACK: I just can't, can't make
an opinion on this case --
THE COURT: Well --
MISS POLLACK: -- Yes or no, you know.
Then -- they all are ganging up on me now.
THE COURT: I don't want to know --
MISS POLLACK: That's what --
THE COURT: Listen to me. I don't want
to hear from you what they are saying in
there. I don't want to know from you what
your position is on this case.
My question of you is, are you willing
to sit and discuss the case with them?
MISS POLLACK: No, I don't want to.
THE COURT: You don't want to?
MISS POLLACK: They have a feeling that
I'm not going to go with them or something,
is what they are saying.
THE COURT: Do you understand what your
function is?
MISS POLLACK: Yes.
THE COURT: Are you willing to try to
follow your oath or not?
MISS POLLACK: They just have an opinion
that they don't want me. That's what I can
see now, and I think I would be better if I
went -- I wouldn't have nothing in this.
THE COURT: When you're saying, they
have a thing that they don't want you, are
you saying that --
MISS POLLACK: I don't know what their
problem is, but that's what they are saying,
now.
THE COURT: Do you wish to continue as a
juror or not?
MISS POLLACK: No.
THE COURT: Are you telling me that you
are unable to continue because of some
personal feeling you have about the case?
MISS POLLACK: Yes.
THE COURT: Can you tell me why?
MISS POLLACK: No, I just can't make an
opinion, that's what I think.
THE COURT: You can't make a opinion?
MISS POLLACK: Opinion.
THE COURT: You can't decide it, you
mean?
MISS POLLACK: That's right.
The court then conferred with counsel. The prosecutor stated that he had observed the juror during trial talking to
herself and "acting * * * somewhat differently [from] anybody
else I've ever seen on a jury." The prosecutor also stated, "I
just feel she doesn't want to be with the rest of the jurors."
Defense counsel observed that Miss Pollack had been "attentive to
the case" and that her responses to the court's questioning
suggested "a bitter dispute between jurors." Defense counsel
also noted, referring to Rule 1:8-2(d), that the juror did not
seem "ill or, certainly, she's not dead or disabled and,
basically, I think she has to go there and make up her mind * * *
." The judge noted that on one occasion he had observed the
juror outside the courtroom "making some sounds to herself."
The court questioned Juror Number 9 further regarding her
understanding of a juror's function and her willingness to
participate:
THE COURT: Miss Pollack, do you
understand it is the function of the 12
people who are in that room to talk about the
case, talk about the facts they've heard and
apply those facts to the law that I gave to
the jury?
MISS POLLACK: Yes.
THE COURT: Pardon me?
MISS POLLACK: Yes.
THE COURT: Are you able to do that?
MISS POLLACK: I could do it, but they
are thinking -- they are thinking discounting
me. It's not going to go their way. They
have a feeling that I'm a hindrance to this
opinion, final verdict or whatever you call
it.
THE COURT: But you understand the
nature of what you must do?
MISS POLLACK: Yes.
THE COURT: And are you willing to do
that?
MISS POLLACK: Yes.
THE COURT: Now, that doesn't mean it
could, necessarily, be easy or difficult in
there to talk about it with the other people,
but are you willing to abide by your oath?
MISS POLLACK: Yes.
THE COURT: Can you do that?
MISS POLLACK: Yes.
THE COURT: Now, before you told me that
you couldn't get an opinion about this.
What did you mean by that?
MISS POLLACK: They just have a feeling
that I'm not going -- fit in with this case.
That's what they are telling me.
Following that colloquy, the court determined to leave Juror
Number 9 on the jury, stating that the record did not contain
enough information to warrant her removal. The court instructed
the jury to return to the jury room, to discuss the case, and to
apply the law to the facts in an effort to reach a decision.
Less than half an hour later, the court received a second
note from the jury. It read:
Juror Number 9 does not understand the
process. She changes her plea every 10
seconds. She wants to vote however we want
to vote, but she is very confused. We have
stressed that she must vote the way she
believes. We request an alternate juror, as
it is felt that Juror Number 9 is not capable
of expressing herself.
The foreperson indicated that the note represented the opinion of
all the jurors. The court questioned Juror Number 9 out of the
presence of the jury:
THE COURT: Miss Pollack, I must speak
to you, now, about your rol[e] as a juror. I
am not going to ask you how you're voting
because I do not want to be told how you're
voting or how the other members of the jury
are voting.
Do you understand?
MISS POLLACK: Yes.
THE COURT: But the jury, the other 11
members of the jury have indicated to me
their belief that you are having difficulty
knowing what you're doing in there.
Do you understand that you must decide
the case with them? Are you able to do that?
MISS POLLACK: I don't think so.
THE COURT: You do not.
Are you able to communicate with them
and discuss the case?
MISS POLLACK: I did, but everybody else
has a different opinion --
THE COURT: All right.
MISS POLLACK: On account of me. I
don't want it to be a mistrial, what they are
saying in there --
THE COURT: I take care of that.
My question is and my inquiry has to be
if you are able to function. They've
indicated to me there's a problem in there
that they say that you are changing your mind
every 10 seconds, for example, about this
particular case.
Is that happening in there?
MISS POLLACK: Yes.
At sidebar, defense counsel again referred to the court rule
for discharge of a juror, arguing that this juror did not fit the
criteria. He stated that the juror had responded firmly to
questions, that she had been clear in her answers, and that she
apparently had indicated to the court that she held a different
opinion from the other jury members. Defense counsel suggested
that the appropriate course would be to explain to the juror that
"she has a personal conviction," and that she must discuss the
case with the other jurors and try to make a determination with
them, but that ultimately "[s]he has to go according to her
mind." The prosecutor disagreed, concluding that the jury's note
and the juror's responses to the court's questioning indicated
not that the juror was voting differently from the other jurors,
but that she did not "understand the process" and could not
"function in the jury process," and, therefore, that the court
had sufficient cause to discharge her.
The court, over defense counsel's objection, removed the
juror:
THE COURT: Earlier, when I interviewed
her, I was not confident that enough was in
the record for me to be permitted to remove
her from the jury. The jury's note, however,
quite clearly indicates she's not functional
in what she's doing there. I earlier told
you that the first day of the trial when I
went home I followed her down the stairway
and I heard her talking to herself.
Apparently, that's not been unknown to
anybody else. You [the prosecutor] noticed
it in terms of the trial, and the reporter
has indicated to me that she's heard her
talking to herself during the same period of
time.
THE REPORTER: Yes, Judge.
THE COURT: Given all this information
and the lady's responses to me, it seems to
me, quite clearly now, that the lady is,
somewhat, bizarre. Intelligence, per se, is
not controlling, but her intelligence does
not seem to be overly acute. I don't think,
at this point in time, that she's able and
functional to know what she's doing to
discuss the case intelligently and to do her
function and her job.
The court dismissed the juror on its own motion, presumably
because the court considered her to be a juror "unable to
continue," under the language of Rule 1:8-2(d). The court
directed the juror who had been designated the first alternate to
take the discharged juror's place. The court instructed the
reconstituted jury that it must "begin * * * work anew" and that
it should not "take any preconceived notions about the case into
that room, but * * * begin again." Fifty-five minutes later the
jury returned with a verdict, finding defendant guilty of sexual
assault and not guilty of theft. The court later sentenced
defendant to ten years' imprisonment with a four-year period of
parole ineligibility.
The Appellate Division reversed the conviction, stating:
"Substantively, we are not convinced from this record, as was the
trial judge, that the excused juror was 'ill or otherwise unable
to continue.'" 262 N.J. Super. at 398 (quoting R. 1:8-2(d)). It
concluded that the trial court improperly had discharged the
juror. On the basis of that error, as well as the trial court's
failure to have the clerk select the substitute juror by lot, and
the substitution of an alternate juror after the remaining eleven
jurors had progressed in deliberations to a stage approaching
agreement on a verdict, the Appellate Division reversed
defendant's conviction and remanded for a new trial. Id. at 400.
Rule 1:8-2(d) governs the impaneling of additional jurors and the discharge and substitution of jurors. Concerning dismissal of a juror after deliberations have commenced, the Rule provides:
If the alternate jurors are not discharged
and if at any time after submission of the
case to the jury, a juror dies or a juror is
discharged by the court because he is ill or
otherwise unable 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.
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. Trent, 157 N.J. Super. 231, 238-39 (App. Div. 1978), rev'd on other grounds, 79 N.J. 251 (1979). The need for judicial economy became evident when the prior Rule regarding
impaneling of alternate jurors was in effect. Under that Rule
the practice was to dismiss the alternate jurors once the court
submitted the case to the jury. See Report of Supreme Court
Committee on Criminal Procedure,
95 N.J.L.J. 341, 356 (Apr. 13,
1972). Thus, if a juror could not complete deliberations due to
illness or some other reason, the court, barring acceptance of a
smaller jury by both parties, had to declare a mistrial. Ibid.
The Sub-Committee on Jury Deliberations of the Supreme Court
Committee on Criminal Procedure recommended in 1972 that the Rule
be amended to allow for the substitution of a juror after
deliberations had begun in cases in which a juror dies, becomes
ill, or is unable to perform the duties of a juror. This Court
followed that recommendation in amending Rule 1:8-2(d).
Balanced against the interests of conserving judicial
resources is the constitutional right of trial by a fair and
impartial jury, U.S. Const. amend. VI; N.J. Const. art. I, ¶ 9,
which must be "scrupulously protected from encroachment or
impairment * * * ." State v. Simon,
79 N.J. 191, 199 (1979). In
State v. Miller,
76 N.J. 392, 406 (1978), we held that Rule 1:8-2(d) does not on its face violate a defendant's constitutional
rights. Because the circumstances in which a juror can be
excused pursuant to the Rule -- death, illness, or inability to
continue deliberations -- "relate exclusively to the personal
situation of the juror himself and not to his interaction with
the other jurors or with the case itself, they are ordinarily not
circumstances having the capacity to affect the substance or the
course of the deliberations." Trent, supra, 157 N.J. Super. at
239. Therefore, substitution of a juror under those
circumstances in most cases does not impair a defendant's right
to trial by a fair and impartial jury. Ibid.; see also
Commonwealth v. Connor,
467 N.E.2d 1340, 1346 (Mass. 1984)
(holding under rule similar to 1:8-2(d) that "good cause" for
discharge of juror includes only reasons personal to deliberating
juror, having nothing to do with case issues or with juror's
relationship with fellow jurors).
The Rule, however, is to be employed sparingly. "[T]he
potential prejudicial impact upon the integrity of the jury
deliberation process would mandate that the rule be invoked only
as a last resort mechanism to avoid the deplorable waste of time,
effort and money inherent in a mistrial." State v. Lipsky,
164 N.J. Super. 39, 43 (App. Div. 1978). See also State v. Corsaro,
107 N.J. 339, 346 (1987) (noting potential for introduction of
improper extraneous influences in substitution of jurors).
[T]he "unable to continue" language of the
rule must be strictly construed and must
ordinarily be limited to compelling
circumstances which are exclusively personal
to the juror in question, and hence which do
not and which by their nature cannot raise
the specter of either a jury taint or a
substantive interference with the ultimate
course of the deliberations beyond that
necessarily implicit in the effect of new
personalities on group dynamics.
[Trent, supra, 157 N.J. Super. at 240.]
A trial court cannot discharge a juror merely because that
juror is one "whose position is at odds with the rest of the
jury." State v. Paige,
256 N.J. Super. 362, 380-81 (App. Div.),
certif. denied,
130 N.J. 17 (1992). See also Connor, supra, 467
N.E.
2d at 1345 ("Great care must be taken to ensure that a lone
dissenting juror is not permitted to evade his
responsibilities."). The appropriate course when a juror
indicates that the jury is deadlocked is to inquire of the jury
whether further deliberation will likely result in a verdict.
See State v. Hunt,
115 N.J. 330, 380 (1989). When the difference
of opinion between members of the jury is clearly intractable,
the trial court should not repeatedly send a dissenting juror
back into the jury room to deliberate, but rather should declare
a mistrial. See State v. Czachor,
82 N.J. 392, 407 (1980)
(approving American Bar Association recommendations stating that
trial court should not repeatedly instruct jury reporting
definite deadlock to continue to deliberate after reasonable
period of deliberations and that court may discharge hung jury if
agreement does not appear reasonably probable); State v.
Vergilio,
261 N.J. Super. 648, 655 (App. Div. 1993) (holding that
returning distraught dissenting juror to jury room and
instructing jury to continue deliberations was unduly coercive).
In Trent, supra, after the jury had been deliberating for
six hours, the trial court excused a juror who stated that she
was "getting sick." 157 N.J. Super. at 235. The juror, in
response to the court's questioning, had said that she was
"nervous," "too emotional," felt like she "want[ed] to spit up,"
and could not decide the case because she identified the
defendant with her own son. Id. at 235-36. Although the juror
had indicated that she might feel better in the morning, the
trial court excused the juror, stating "'she is physically and
emotionally disturbed and * * * I don't think she can properly
and adequately carry out her duties as a juror * * * .'" Id. at
236-37. The Appellate Division noted that dispersing the jury
for the evening might have been "a prudent course to follow," id.
at 241, but nonetheless upheld the conviction, determining that
the trial court reasonably had exercised its discretion in
removing the juror. The court observed that the juror's
incapacity was attributable only to personal characteristics of
that juror, and that the record did not demonstrate that "her
distress or its cause tainted or infected the jury as a whole * *
* ." Id. at 240. We reversed the Appellate Division's judgment
on the basis that the trial court had failed to charge the
reconstituted jury that it must begin deliberations anew. Trent,
supra, 79 N.J. at 257. Indeed, the trial court had instructed
the substituted juror to "'continue with deliberations with the
other jurors.'" Id. at 253. Because we reversed on that ground,
we did not reach the issue whether the trial court had mistakenly
exercised its discretion in discharging the juror. Ibid.
In Miller, supra, we determined that the trial court had
properly exercised the discretion granted by Rule 1:8-2(d) in
excusing a juror who requested dismissal because he was very
nervous and his nervousness was affecting his judgment. In
response to the trial court's questioning, the juror stated that
he did not think that he could render a fair verdict. The trial
court discharged the juror and substituted an alternate. 76 N.J.
at 401-02. We determined that that decision was reasonable,
stating that "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." Id. at 406-07. See
also People v. Collins,
552 P.2d 742 (Cal. 1976) (upholding under
rule similar to 1:8-2(d) dismissal of juror who stated that she
could not perform her duty because she was too emotional), cert.
denied,
429 U.S. 1077,
97 S. Ct. 820,
50 L. Ed.2d 796 (1977).
We recognized in Miller, however, that "[t]he rule is
discretionary with the trial court because a situation might
arise where it would be unwise to utilize this procedure." 76
N.J. at 407.
The trial court excused Juror Number 9 because it believed she was unable to function in the jury room. The court stated that it based its conclusion on the jury's second note, the juror's demeanor and responses to the court's questioning, and the observations the court and others had made of the juror's behavior. The court made clear that it considered the juror to be "somewhat bizarre" and not of "overly acute" intelligence.
The court dismissed the juror despite her statements that
she understood her function, that she was willing to abide by her
oath, and that she was willing and able to apply the law. As the
Appellate Division noted, the juror never stated "that she was
unable to render a fair verdict." 262 N.J. Super. at 399. The
jury's second note indicated both that the juror constantly
changed her mind and that she wanted to vote the same way that
the other members of the jury were voting. However, although the
juror herself stated that she was going back and forth in her
vote, she did not suggest that she wanted to vote for the same
outcome as the other jury members.
The record also contains evidence that the circumstances
leading to the jury's and the juror's desire for discharge may
have stemmed from interactions in the jury room. Many of the
juror's responses to the court's questioning indicate that she
held a different position from that of the other jurors. The
juror stated in the colloquies with the court, "they all are
ganging up on me now" and "[t]hey have a feeling that I'm not
going to go with them * * * ." In response to the court's
question regarding whether the juror could apply the facts to the
law as given, the juror responded: "I could do it, but they are
thinking -- they are thinking discounting me. It's not going to
go their way. They have a feeling that I'm a hindrance to this
opinion, final verdict or whatever you call it." After the jury
sent out the second note, the juror responded to the court's
query regarding her ability to communicate with the other jurors
and discuss the case by stating, "I did, but everybody else has a
different opinion * * * [o]n account of me. I don't want it to
be a mistrial, what they are saying in there * * * ."
The question before us is whether on this record the court
reasonably exercised its discretion in removing the juror. We
hold that it did not. The record on which a court may excuse a
deliberating juror must reveal with greater clarity that a juror
cannot proceed with deliberations and fulfill the function of a
juror, particularly when the record contains any suggestion that
the problems regarding the juror stem from interactions with the
other jurors and not from circumstances "exclusively personal to
the juror in question * * * ." Trent, supra, 157 N.J. Super. at
240. If a court is uncertain whether a juror is unable to
continue, the court should question the juror in sufficient
detail to establish a record adequate to inform the trial court,
as well as a reviewing court, whether the juror possesses the
intellect and the emotional stability to discharge the duty of a
juror. On that issue, a trial court should not rely on instinct.
Here the juror indicated that she was unable to decide the case
with the other jurors; but whether that inability resulted from
factors personal to the juror, from the failure of the State to
meet its burden of proof, or from the juror's disagreement with
the other jurors was never established. See Opinion of the
Justices (Alternate Jurors),
623 A.2d 1334, 1338 (N.H. 1993)
(stating that prior to excusing deliberating juror, trial court
should question juror and make findings on record that not only
establish meritorious reason for discharge but also eliminate
improper reasons).
We agree generally with the Appellate Division that
[i]t is not always clear whether a juror
cannot vote because of illness or an
intractable inability to understand the
function of a juror, or because the juror is
honestly indecisive in weighing the evidence
against the State's heavy burden of proof.
Where there is any doubt, before considering
whether to discharge such a juror as
hopelessly dysfunctional, a trial judge
should have the jury resume deliberations
after reminding them of the State's burden of
proof and carefully explaining that jurors
should vote "guilty" or "not guilty"
depending on whether they are convinced
beyond a reasonable doubt that the State has
proven all the elements of the offense being
considered.
Thus, we hold that a juror cannot be discharged as "unable to
continue" unless the record adequately establishes that the juror
suffers from an inability to function that is personal and
unrelated to the juror's interaction with the other jury members.
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. If the jury remains unable to
return a verdict, the court should determine whether further
deliberation would allow the jury to reach a verdict. If the
jury indicates intractable deadlock, the court should declare a
mistrial.
Because this record does not clearly indicate that the juror
was "unable to continue," and based on implications in the record
that the juror's problems related not only to personal
circumstances but also to factors arising from the juror's
interactions with the other jurors, we hold that the trial court
abused its discretion in discharging Juror Number 9. We
emphasize as we did in Trent, supra, that the fundamental right
of fair and impartial jury deliberations must be zealously
protected. 79 N.J. at 257. That protection is not ensured when
a court discharges a juror under circumstances that bring into
question the integrity of the jury's deliberative function.
Because we conclude that the court improperly discharged Juror Number 9, we need not decide whether the jury had progressed too far in its deliberations to permit the substitution of an alternate juror and whether the procedure the court employed in selecting the substitute juror was prejudicially defective. We discuss briefly, however, the law applicable to those issues to emphasize the cautious approach that courts must take in substituting a juror on a deliberating jury to ensure that the integrity of jury deliberations is preserved.
With regard to the timing of juror substitutions, we reiterate that there may be a point at which the jury
will have progressed so far in its
deliberations that it will have reached
determinations. Hence, at that juncture, the
substituted juror will not have "had the
benefit of the deliberations of the other
11," People v. Collins, supra, 552 P.
2d at
746[, quoted in] Trent, supra, 79 N.J. at
256[], and may indeed be pressured by the
amount of time the jury has deliberated and
by the extent of their progress to conform to
their findings and verdict.
In Corsaro, the jury had returned a partial verdict and had
reconvened to deliberate on further charges. The trial court,
with the acquiescence of the defendants, discharged a juror who
appeared intoxicated and substituted an alternate juror. The
court then instructed the jury to begin deliberations anew on the
remaining charges. We held that a juror could not be substituted
after a jury has returned a partial verdict because at that point
"the deliberative process has progressed for such a length of
time or to such a degree that * * * [a] new juror is likely to be
confronted with closed or closing minds." Id. at 352.
Although in Corsaro we recognized "a grey area between jury
deliberations and determinations," id. at 351, we cautioned that
"[t]o allow juror substitution at an advanced stage of
deliberations would be to sanction a rift in the collectivity and
mutuality of the jury's deliberations and to impose precisely the
kind of extraneous influence upon the deliberative process that
this Court has forbidden." Id. at 350-51. In Miller, supra, the
Court noted that "[t]he longer the period of time the jury
deliberates, the greater is the possibility of prejudice should a
juror be substituted or replaced." 76 N.J. at 407. We found
that the defendant there had not been prejudiced by the
substitution of a juror after the jury had been deliberating for
about an hour and a quarter. Id. at 401, 407; see also Lipsky,
supra,
164 N.J. Super. 39 (finding substitution after almost five
hours of deliberation not abuse of discretion, but reversing
conviction on court's failure to instruct jury to begin
deliberations anew). The concern in determining whether
substitution can take place at a given point in the deliberations
is not merely the length of time that the jury has deliberated
but the effect that the progress in deliberations will have on
the reconstituted jury's ability truly to begin deliberations
anew. See Corsaro, supra, 107 N.J. at 354.
With regard to selection of an alternate juror in
circumstances in which substitution for a deliberating juror is
appropriate, Rule 1:8-2(d) provides that the trial 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." Although
the Rule states that when a juror is discharged, the court "may"
direct the clerk to draw an alternate, that permissive language
relates to the court's discretion either to substitute a juror or
to declare a mistrial. The Sub-Committee on Jury Deliberations
of the Supreme Court Committee on Criminal Procedure, in
recommending adoption of the amended rule,
concluded that the conjectural dangers of substitution should not militate against the decision to permit it. Accordingly, the rule
was drawn in permissive terms, authorizing
the court in its discretion first to retain
the alternate jurors and second to substitute
an alternate, by lot, for a juror unable to
continue.
[Pressler, Current N.J. Court Rules, comment
5 on R. 1:8-2(d) (1993).]
Contrary to Rule 1:8-2(d), the trial court did not select
the substitute juror by lot, but instructed the designated first
alternate to take the discharged juror's place. The court's
original designation of the alternates was by lot and the court's
regular practice may have been to substitute the designated first
alternate if the need for substitution arose. The record
contains no evidence of the court's usual practice nor any
evidence that the court's substitution was improperly motivated.
Because of our disposition, we need not decide whether that
procedural defect standing alone could have sufficiently
prejudiced defendant's rights to warrant reversal of his
conviction. We emphasize, however, that in selecting substitute
jurors, trial courts should follow the procedure prescribed by
Rule 1:8-2(d) to avoid the appearance of a preference for one
alternate over the other.
The judgment of the Appellate Division is affirmed.
Chief Justice Wilentz and Justices Clifford, Handler, Pollock, O'Hern, and Garibaldi join in this opinion.