(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 November 26, 2001 -- Decided March 18, 2002
LaVECCHIA, J., writing for a unanimous Court.
The question to be determined in this appeal is whether financial hardship can rise to the level of an
“inability to continue” under Rule 1:8-2(d) to justify excusing a deliberating juror.
On January 23, 1996, Joel Williams and Monroe McCloud were arrested in the City of Camden after
selling drugs to undercover police officers. They were indicted on four counts, including third degree conspiracy
and third degree possession with intent to distribute a controlled dangerous substance.
Williams and McCloud were tried together jointly. According to the State's evidence, two undercover
investigators were engaged in an undercover “buy-bust” operation, in which an officer purchases drugs and then
calls a backup unit to make an arrest based on a description of the suspect. Once an arrest is made, the “purchasing”
officer makes an identification. While driving in an unmarked vehicle, the two investigators observed three men on
a corner engaged in conversation. One investigator made eye contact with one of the men, later identified as
McCloud. When the investigators stopped their vehicle and one exited, McCloud approached the driver and
explained he should move the car because police were in the area and they appeared “too obvious.” While the
investigator who had exited the vehicle was walking toward the other two men, one of them, Noah Xavier, went into
a nearby abandoned house. The other man, later identified as Williams, told the investigator to wait with him.
Xavier then emerged from the house and signaled the investigator to join him inside, where the investigator
purchased two five dollar bags of cocaine. As the investigator returned to the car, McCloud and Williams were still
standing at the corner.
The investigators radioed the backup and relayed their location and a description of the suspects. The
investigator estimated that forty-five seconds had transpired between the purchase and the arrival of the backup.
The backup took three individuals into custody, including Williams and McCloud. After the arrest, the undercover
investigators conducted a “ride-by” identification and confirmed the three men taken into custody were those
involved in the drug sale. The defendants sought to challenge the reliability of the State's identification evidence,
and Williams testified that he was returning home from his sister's house when he was arrested by the backup team.
The jury deliberated for approximately three hours before requesting a readback of the investigator's
descriptions of the three suspects, as well as Williams' entire examination. At the conclusion of the readbacks, the
trial court asked the jury whether it wished to continue deliberations or reconvene the following day. The jury
determined to return the next day, however, Juror Number Two indicated to the court that he could not return.
Outside the presence of the jury, the trial court explained to counsel that if the juror's excuse was a good one, he
intended to replace that juror with one of the alternates. The attorneys for McCloud and Williams agreed to the
proposal.
The trial court then inquired of Juror Number Two why he could not return. The juror indicated that he
needed to make some money, and that he thought the matter would only involve one or two days. The juror stated,
“I'm not getting paid for being here. I gave it my best shot. I stayed here for three days so far.” The trial court
asked defense counsel if they had any objection to the juror being excused, and they replied that they would leave it
to the trial court's discretion.
The trial court excused Juror Number Two and replaced him with an alternate. The trial court also
instructed the jury that when they returned the following day, they were to begin their deliberations again as if they
were entering the jury room for the first time and eliminate the impact that the excused juror may have had on
deliberations. The next morning, the jury deliberated for approximately three hours before returning the guilty
verdicts against both Williams and McCloud. Williams was sentenced to a four-year term with a three-year
minimum, and McCloud received a persistent-offender mandatory term of ten years, with a five-year minimum.
The Appellate Division reversed, reasoning that the trial court erred by improperly removing a deliberating
juror.
336 N.J. Super. 115 (2000). The majority held that Juror Number Two's excuse did not rise to the level of a
“compelling circumstance,” an “inability to perform the duties of a juror,” or an “inability to continue
deliberations.” In addition, the panel stated that the substitution of an alternate juror came at a critical time, and that
the juror's statement that he “gave it [his] best shot” signified that the deliberative process itself was implicated in
his request to be excused. A dissenting member of the panel concluded that although the substitution was
unwarranted, it was not plain error.
The State filed an appeal as of right based on the dissent, and also filed a petition for certification. The
Supreme Court granted the petition.
HELD: The “inability to continue” standard of Rule 1:8-2(d) may be met by a determination of financial hardship.
The decision to dismiss the juror in this case did not amount to plain error.
1. Rule 1:8-2(d)(1) permits a trial court to substitute an alternate juror for a regular juror after deliberations have
begun because of death, illness, or “other inability to continue.” Because juror substitution has the potential for
prejudicing the integrity of the jury's deliberative process, it should be invoked only as a last resort. To remove a
juror for an inability to continue, the record must establish that the juror suffers from an inability to function that is
personal and unrelated to the juror's interaction with the other jury members. (Pp. 10-18)
2. The “inability to continue” standard of Rule 1:8-2(d) may be met by a determination of financial hardship. The
financial consequence of lost wages is a burden on a juror. The difficulty posed by that burden is an individualized
one and on proper examination it may prove to be sufficiently great for a juror and those dependent on him or her
that it can effect the juror's ability to complete his or her duties. The record developed here reveals that Juror
Number Two's request to be excused was based on more than inconvenience. Although this Court would have
preferred a more thorough exchange between the trial court and the juror to appreciate fully the extent of financial
hardship, the trial court's finding of hardship did not amount to an abuse of discretion. In the future a trial court
should determine that the financial hardship is sufficiently significant to justify excusing the juror during
deliberations, and would be likely to prevent the juror from concentrating on and participating fully in the
deliberations of the jury. (Pp. 19-20)
3. The record does not reveal that Juror Number Two's request to be dismissed stemmed from any aspect of his
interactions with his fellow jurors. Although the juror's statement that he gave it his best shot could be understood
to refer to the deliberative process, that statement should not be read in isolation. Examined in the context of his
entire exchange with the trial judge, it appears that the juror simply was expressing his need to resume earning some
money. The Court declines to find the decision to dismiss Juror Number Two to be plain error, especially where all
counsel agreed to the substitution at the time. (Pp. 20-25)
Judgment of the Appellate Division is REVERSED, and the matter is remanded to the Appellate Division
for consideration of defendants' claims of error that were not resolved in the court's prior judgments.
CHIEF JUSTICE PORITZ and JUSTICES STEIN, COLEMAN, LONG, VERNIERO and
ZAZZALI join in JUSTICE LaVECCHIA's opinion.
SUPREME COURT OF NEW JERSEY
A-106/
107 September Term 2000
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
JOEL WILLIAMS, a/k/a JOHN
SNOWE and JOEL DERRICK
WILLIAMS,
Defendant-Respondent.
__________________________
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
MONROE MCCLOUD, a/k/a
TONY/MANNY MCCLOUD,
Defendant-Respondent.
__________________________
Argued November 26, 2001 -- Decided March 18, 2002
On appeal from and certification to the
Superior Court, Appellate Division whose
opinion is reported at
336 N.J. Super. 115
(2000) (State v. Williams).
On appeal from and certification to the
Superior Court, Appellate Division. (State
v. McCloud).
Linda A. Shashoua, Assistant Prosecutor,
argued the cause for appellant (Lee A.
Solomon, Camden County Prosecutor, attorney).
Robert L. Sloan, Assistant Deputy Public
Defender, argued the cause for respondent
Joel Williams (Peter A. Garcia, Acting Public
Defender, attorney).
Ruth Bove Carlucci, Assistant Deputy Public
Defender, argued the cause for respondent
Monroe McCloud (Peter A. Garcia, Acting
Public Defender, attorney).
Wendy Alice Way, Deputy Attorney General,
argued the cause for amicus curiae, Attorney
General of New Jersey (John J. Farmer, Jr.,
Attorney General, attorney).
The opinion of the Court was delivered by
LaVECCHIA, J.
This appeal presents the Court with the opportunity to
determine whether financial hardship can rise to the level of an
“inability to continue” under Rule 1:8-2(d) to justify the
excusal of a deliberating juror. Because we answer that question
in the affirmative, we are called on to address whether the trial
court committed plain error by exercising its discretion in this
matter to excuse a deliberating juror on that asserted ground.
We hold that the trial court did not abuse its discretion, and
that its actions did not amount to plain error. Accordingly, the
determination of the Appellate Division is reversed.
Defendants were tried jointly and the following facts were adduced. On January 23, 1996, at 2:20 p.m., Investigators Jerome Alan Kee and William Gonzalez were working undercover near Seventh Street and Woodlynne Avenue in Camden. The officers were engaged in an undercover “buy-bust” operation. During a “buy- bust” operation an officer purchases drugs from a “drug corner” and then calls a backup unit to make an arrest based on a description of the suspect. Once the backup unit detains the suspect, the “purchasing” officer makes an identification.
Investigators Kee and Gonzalez drove to the intersection of Seventh Street and Woodlynne Avenue and observed three men standing on the corner engaged in conversation. Kee made eye contact with one of the men, later identified as defendant Monroe McCloud. As Kee exited the vehicle, McCloud approached the officers' vehicle and explained that they had to move the automobile from its location because police were in the area and they appeared “too obvious.” While Gonzalez moved the vehicle, Kee walked toward the other two individuals. He observed the shorter of the two, later identified as Noah Xavier, run into a nearby abandoned house. Defendant Williams instructed Kee to stand and wait for Xavier. Xavier then emerged from the abandoned house and signaled Kee to join him inside.
Once inside, Xavier asked Kee what he wanted and Kee responded “two nicks.” “Two nicks” are five dollar bags of cocaine. Xavier gave Kee the drugs in exchange for a twenty dollar bill. Kee left after he received his change and proceeded to the investigators' vehicle. He observed McCloud and Williams on the corner.
As Kee approached the vehicle, he signaled to Gonzalez that he made a legitimate “buy.” Gonzalez radioed the backup units and Kee relayed their location and a description of the suspects. Kee testified that forty-five seconds transpired between the drug purchase and the arrival of the backup team. The backup team took three individuals into custody.
Defendants' attorneys raised discrepancies between the description of the three suspects' skin tones given to the backup team in the radio transmission and the appearances of Williams and McCloud at trial. Further, Kee could not provide a positive in-court identification of defendants due to a two-year time lapse between the arrests and trial. Nonetheless, Kee testified that the three men he identified were the same three taken into custody by the backup team. Gonzalez corroborated Kee's testimony. The parties also stipulated that fingerprints taken of defendants on the day of the arrests matched the fingerprints of defendants at the time of trial.
Investigator Jeffery Moore testified that on January 23, 1996, he too participated in the “buy-bust” operation as a member of the backup arrest team. After his team arrested the three individuals, Investigators Kee and Gonzalez conducted a “ride-by” identification procedure whereby they identified the three men taken into custody as those involved in the drug sale. Investigator Charles Farrell also testified that he participated in the January 23, 1996, “buy-bust” operation. Farrell testified that he apprehended the men described by the undercover officers. Defendant Williams testified that on January 23, 1996, he was returning home from his sister's house. As he walked down the street, he saw four individuals standing on the corner of Seventh Street and Woodlynne Avenue. Williams observed McCloud talking to Xavier and approached them. As the three discussed automobile parts, several officers suddenly appeared and arrested them. Williams denied that he witnessed or participated in any drug transactions.
At the close of the evidence, the court charged the jury and sent them to deliberate. The jury deliberated for approximately three hours before requesting a readback of Investigators Kee and Moore's descriptions of the three suspects, and that of defendant Williams' entire examination. At the conclusion of the readbacks, the trial court asked the jury whether it wished to continue its deliberations or reconvene the following day. The jury decided to return the next day; however, Juror Number Two indicated to the court that he could not return. Outside the presence of the jury, the trial court explained to the parties:
[O]ne juror has indicated that, I don't know what the reason is but they cannot be here tomorrow, I don't know whether the excuse is a good one or a poor one or somewhere in between[,] but assuming the Court determines that it is a valid excuse for not being here, based on your positions as far as how we go about selecting an alternate, I'm going to make the determination because nobody can point me to any authority right at the moment that we will draw from the box among the two and whoever is drawn will be the replacement juror, okay?
Defendants' attorneys agreed to the substitution procedure.
The court then reconvened the jury and the following colloquy occurred between the trial court and Juror Number Two.
Court: Who has the problem? All right,
sir. Would you indicate why you
do not feel you could return tomorrow to continue deliberations.
Juror Number Two: Well, I need to make some money this week. I thought this was only going to go maybe one, two days, I
need to get back on track.
Court: Well, I would suggest to you, sir,
that probably applies to everyone
on the jury.
Juror Number Two: I'm not getting paid for being here.
I gave it my best shot. I stayed
here for three days so far.
Court: So you're saying you would have a
hardship if you had to return here
tomorrow?
Juror Number Two: Yes, sir.
Court: Counsel, do you have any difficulty
if this juror is excused?
Defense Counsel: Judge, I leave it to your discretion.
Court: Okay. It's discretionary with the
Court, sir, I will grant your request
so you are excused from further
deliberations. We will select an
alternate juror who will take your
spot.
The court then excused Juror Number Two, and addressed the
remaining members of the jury once again before releasing them
for the day:
One final thing before your leave for the evening,
folks. As you know, one of your members has been
excused from the jury, an alternate has been selected.
Because of this change in your jury, you must set aside
and disregard all your past deliberations and begin your
deliberations again just as if you were now entering the
jury room for the first time directly after listening to
my charge. Beginning your deliberations again, you must
eliminate any impact that the juror who is being excused
may have had on your deliberations and consider the
evidence in the context of full and complete
deliberations with the new member of your jury. That's
my final comment . . . . [W]hen you return tomorrow,
you will not be brought back into the courtroom, you
will return directly to your deliberating room to begin
your deliberations . . . .
The next morning, the jury deliberated for approximately three
hours before returning guilty verdicts against both defendants.
The jury was polled, confirming that the verdicts were unanimous.
Defendants Williams and McCloud were sentenced on November
20, 1998. The trial court merged Counts One, Two, and Three with
Count Four and sentenced defendant Williams to a four-year term,
with a three-year parole disqualifier. The appropriate fines,
penalties, and driver's licence suspension were imposed. In
respect of defendant McCloud, the trial court again merged Counts
One, Two, and Three with Count Four and imposed a persistent-
offender mandatory term of ten years, with a five-year parole
disqualifier. Appropriate fines, penalties, and driver's licence
suspension also were imposed.
Defendants appealed and the Appellate Division reversed the
convictions, reasoning that the trial court erred by improperly
removing a deliberating juror.
336 N.J. Super. 115, 123 (2000).
A majority of the panel noted that the reason for excusal offered
by Juror Number Two is frequently raised during voir dire and
rejected. Id. at 121. Specifically, the majority held that
Juror Number Two's excuse did not rise to the level of a
“compelling circumstance,” an “inability to perform the duties of
a juror,” or an “inability to continue deliberations.” Ibid.
Although the panel acknowledged that the trial court's colloquy
with the juror spoke of “hardship,” the hardship circumstance was
extracted by the judge through a leading question. Ibid.
Further, the panel also was prompted to reverse because the
substitution of the alternate came at a critical time in the
jury's deliberative process. Ibid. The panel opined that the
juror's statement that he “gave it [his] best shot” signified
that the “deliberative process itself” was implicated in his
request to be excused. Id. at 121-22. Although defense counsel
acquiesced in the substitution of the alternate, the panel
determined that the substitution was plain error. Id. at 122.
Judge Coburn dissented, concluding that although the
substitution of Juror Number Two was unwarranted under Rule 1:8-
2(d)(1), the excusal of the juror and the substitution of an
alternate was not plain error. Id. at 123. The dissent also
disagreed with the majority's finding that the substitution came
at a critical time in the jury's deliberative process. Id. at
124-25. Specifically, the dissent maintained that the readback
request was entirely inconsistent with the conclusion that the
jury had determined the critical issue of identification. Id. at
125. The dissent reasoned that the deliberative process had not
progressed to the point where “it [was] strongly inferable that
the jury ha[d] made actual fact-findings or reache[d]
determinations of guilt or innocence,” noting that the court gave
a “clear and strong” charge regarding the substitution and the
jury deliberated for three hours after the substitution before
rendering a verdict. Ibid.
In addition to those matters before the Court because of the
dissent below, we also granted certification, State v. Williams,
169 N.J. 604 (2001) and State v. McCloud,
169 N.J. 604 (2001), to
consider the trial court's discharge and substitution of a
deliberating juror for financial hardship under the “inability to
continue” standard of Rule 1:8-2(d)(1).
Rule 1:8-2(d)(1) governs the impaneling of additional jurors and the discharge and substitution of jurors. State v. Valenzuela, 136 N.J. 458, 467 (1994). The rule permits a trial court to substitute an alternate juror for a regular juror after deliberations have begun because of death, illness, or “other inability to continue.” Rule 1:8-2(d) states, in pertinent part:
The court in its discretion may direct the impanelling
[sic] of a jury of such number as it deems necessary
to ensure that a sufficient number of jurors will
remain to deliberate . . . . All the jurors shall sit
and hear the case, but the court for good cause shown
may excuse any of them from service provided the
number of jurors is not reduced to less than 12 or 6
as the case may be or such other number as may be
stipulated to. If more than such number are left on
the jury at the conclusion of the court's charge, the
clerk of the court in the jury's presence shall
randomly draw such number of names as will reduce
the jury to the number required to determine the issues. 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.
Substitution of an alternate juror during deliberation does not in and of itself offend a defendant's constitutional guarantee of a trial by jury. State v. Miller, 76 N.J. 392, 406- 07 (1978). However, sparing use of the rule is counselled. Valenzuela, supra, 136 N.J. at 467-68. See also State v. Hightower, 146 N.J. 239, 253 (1996) (explaining that notwithstanding rule's broad language trial courts do not have unbridled discretion). “Because 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.” Hightower, supra, 146 N.J. at 254 (citing State v. Lipsky, 164 N.J. Super. 39, 43 (App. Div. 1978)); State v. Trent, 157 N.J. Super. 231, 239 (1978), rev'd on other grounds, 79 N.J. 251 (1979) (explaining that standard of “inability to continue” is considerably more narrow than concept of good cause to discharge prospective juror). At the heart of jury deliberations is a joint or collective exchange of views among individual jurors. It is therefore necessary to structure a process and create an environment that fosters and preserves that exchange until the jury reaches a final determination. State v. Corsaro, 107 N.J. 339, 349 (1987). The reconstitution of a jury by substitution of an alternate juror in the course of jury deliberations can destroy the mutuality of those deliberations. Ibid. See also Hightower, supra, 146 N.J. at 253 (noting that frequent reconstitution of deliberating juries threatens integrity and mutuality of deliberations, thereby depriving defendants of right to fair trial by impartial jury).
Because of the concerns surrounding the impaneling of an alternate juror after deliberations have commenced, discharge of a deliberating juror is permitted only for reasons that are personal to the juror and that do not relate to the juror's interaction with the other jurors or with the case itself. Valenzuela, supra, 136 N.J. at 468. See also Trent, supra, 157 N.J. Super. at 239 (explaining that circumstances mandating substitution of juror under inability to continue standard are those which “are ordinarily not circumstances having the capacity to affect the substance or course of the deliberations”); State v. Paige, 256 N.J. Super. 362, 380-81 (App. Div.), certif. denied, 130 N.J. 17 (1992) (holding that trial court cannot discharge juror merely because juror is at odds with rest of jury).
Although the “death” and “illness” standards are narrow, the “inability-to-continue” standard has been acknowledged to be somewhat vague and broad; accordingly, the Court has construed and applied it narrowly. Hightower, supra, 146 N.J. at 254 (citing Valenzuela, supra, 136 N.J. at 468); Trent, supra, 157 N.J. Super. at 240. To remove a juror under that standard
the record [must] adequately establish[] 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.
supra, 136 N.J. at 472-73) (emphasis added).]
Thus, “inability to continue” has been invoked to remove a juror
under circumstances that reveal that the juror's emotional
condition renders him or her unable to render a fair verdict.
Hightower, supra, 146 N.J. at 255. See e.g., Miller, supra, 76
N.J. at 406-07 (upholding substitution where juror's nervous and
emotional condition rendered him unable to reach fair verdict);
Trent, supra, 157 N.J. Super. at 240 (finding removal proper
where juror suffered severe emotional and physical distress).
Arguably, however, in those instances the inability to continue
standard overlapped with the “illness” consideration permitted by
the rule.
The question squarely presented here is whether a claim of
financial hardship falls within the “inability to continue”
standard set forth in Rule 1:8-2(d). When the issue of financial
hardship is brought into focus at an early stage of a criminal
proceeding, the balancing of interests allows greater flexibility
favoring the prospective juror with the asserted hardship.
Courts have had no difficulty recognizing that a prospective
juror may be excused for financial hardship. Thiel v. Southern
Pacific Co.,
328 U.S. 217, 224,
66 S. Ct. 984, 987,
90 L. Ed. 1181, 1186 (1946) (recognizing authority of court to excuse daily
wage earner from prospective jury service on individualized
showing of undue financial hardship); State v. Biegenwald,
106 N.J. 13, 30 (1987) (holding that trial court can excuse
prospective juror for financial hardship); People v. Reese,
670 P.2d 11, 12, 14 (Colo. Ct. App. 1983) (explaining that court has
discretion to excuse for cause juror who would not be paid her
salary during jury service on basis of undue financial burden).
See also State v. Marcus,
294 N.J. Super. 267, 274 (App. Div.
1996), certif. denied,
157 N.J. 543 (1998) (rejecting defendant's
claim of trial court error for dismissing sworn juror for
financial hardship).
The financial realities of jury service require that courts
have the discretion to excuse a juror on the basis of financial
hardship.
Jurors are paid between four and fifty dollars per day
of jury service, depending on the State. Some
employers may pay employees who are on jury duty for a
couple of weeks; unfortunately, many employers do not.
Jurors who are self-employed or who work for
commissions or tips suffer a serious financial loss as
a result of serving on a jury. People with childcare
responsibilities are likely to ask to be excused for
the simple reason that the cost of hiring someone else
to perform childcare may be prohibitive in comparison
with the juror compensation rate. Most judges therefore
excuse people who will suffer financial hardship or who
have family responsibilities at home.
and How to Fix it, 20 Harv. J. L. & Pub. Pol'y
483, 486-87 (1997).]
See also Joanna Sobol, Hardship Excuses and Occupational
Exemptions: The Impairment of the Fair Cross-Section of the
Community,
69 S. Cal. L. Rev. 155, 166 (1995) (acknowledging that
financial hardship can occur when employer will not pay
employee's salary during jury service); Silagy v. State,
101 N.J.
Super. 455, 461 (Law. Div. 1968), aff'd,
105 N.J. Super. 507
(App. Div.), certif. denied,
54 N.J. 506 (1969) (recognizing
financial hardship on jurors who are not paid during jury
service).
Although the question is closer when considering whether
financial hardship can justify the discharge of a deliberating
juror under Rule 1:8-2(d)(1), other courts have permitted a
sitting or deliberating juror to be dismissed for financial
reasons. For instance, in People v. Mickey,
818 P.2d 84 (Cal.
1991), cert. denied,
506 U.S. 819,
113 S. Ct. 65,
121 L. Ed.2d 32 (1992), the defendant challenged, among other things, the
trial court's excusal of a juror for hardship after the jury was
sworn. Id. at 108-09. In affirming the defendant's conviction,
the Supreme Court of California rejected the defendant's claim on
procedural grounds because the defendant failed to object below
to the juror's discharge; it also commented in dicta that were it
to reach the merits, it would reject the argument. Id. at 109.
The court acknowledged the trial court's authority to excuse a
person for undue hardship and commented that the exercise of that
authority is reviewed under an abuse of discretion standard.
Ibid.
Recently in People v. Earp,
978 P.2d 15 (Cal. 1999), cert.
denied,
529 U.S. 1005,
120 S. Ct. 1272,
146 L. Ed.2d 221 (2000),
the California Court had occasion to examine the issue of juror
financial hardship under a “good cause” standard as embodied in
that State's rule. Id. at 57-58. In Earp, the defendant argued
that the trial court erred when it discharged a juror during the
penalty phase of deliberations. Id. at 57. After the jury had
deliberated for approximately a day and a half, a juror asked to
be excused from further service because her employer had stopped
paying her salary during her period of jury service and she
already had to resort to the use of vacation time while
continuing on the jury. Ibid. When asked whether it would be a
hardship for her to continue her service, the juror replied, “I
would either have to take vacation or not get paid.” Ibid. Over
the defendant's objection, the trial court excused the juror for
financial hardship, selected an alternate, and instructed the
jury to deliberate anew. Ibid. California's high court upheld
the trial court's action under an abuse of discretion standard of
review. Id. at 58.
More closely analogous to our question is the decision in
United States v. Echavarria-Olarte,
904 F.2d 1391 (9th Cir.
1990), where the Ninth Circuit Court of Appeals determined that
reversible error would not be found where a trial court dismissed
a sworn juror on the basis of a financial hardship. Id. at 1394-
95. The court observed the difficulty of discerning whether a
juror claiming financial hardship is “unable . . . to perform
[his] duties” under the Federal Rule of Criminal Procedure 24(c)
standard, noting that the determination is particularly suited to
the exercise of discretion by trial court. Id. at 1395. Cf.
People v. Bunch,
717 N.Y.S.2d 385, 386-87 (2000) (affirming trial
court where on second day of jury deliberations juror informed
court “she felt pressure to return to her ailing computer
business[,]” but trial court after thorough inquiry found juror
not “unavailable to continue service[,]” and noting that as
general rule, mere assertion of any financial hardship, standing
alone, is not sufficient to warrant discharge from jury service).
We hold that the “inability to continue” standard of Rule 1:8-2(d) may be met by a determination of financial hardship. To be sure, the financial consequence of lost wages is a burden on a juror. The difficulty posed by that burden is an individualized one and on proper examination it may prove to be sufficiently great for a juror and those dependent on him or her that it can affect the juror's ability to complete his or her duties. A juror who is excused because of a true financial hardship suffers from an inability to function that is exclusively personal, as the Rule requires, and also is unrelated to the juror's interaction with the other jury members.
At oral argument, both parties conceded that financial hardship can provide a valid basis for dismissing a deliberating juror. Examination of the record developed here reveals that Juror Number Two's request to be excused was based on more than mere inconvenience. Although the trial court led the discussion with the juror and used the artful term “hardship” in that colloquy, we do not find that to be significant. See Earp, supra, 978 P. 2d at 57.
Prior to the trial court's question concerning hardship, Juror Number Two made the following statements: “Well, I need to make some money this week. I thought this was only going to go maybe one, two days, I need to get back on track,” and “I'm not getting paid for being here. I gave it my best shot. I stayed here for three days so far.” Those statements by Juror Number Two communicated his concern that he could not continue his jury service because of financial concerns. The record revealed that Juror Number Two was unable to make any money for the three days he was serving as a juror and he stressed his need to earn some wages for that week. He needed to get back “on track,” signifying that this juror needed daily earnings to cover regular expenses. Although we would have preferred to have a more explicit exchange between the court and the juror to appreciate fully the extent of financial hardship perceived by the trial court, we decline to hold that the trial court's finding of hardship amounted to an abuse of discretion. We note only that in the future a trial court should determine that the financial hardship is sufficiently significant to justify excusing the juror during deliberations, and would be likely to prevent the juror from concentrating on and participating fully in the deliberations of the jury. Thusly determined, such a hardship constitutes an inability to continue that is, in effect, no less problematic then that of the emotionally distressed juror who can no longer participate in rendering a fair verdict.
The Appellate Division majority found that the trial court's substitution of Juror Number Two came at a “critical time” in the jury's deliberation process, and that the juror's statement that he “gave it [his] best shot” implicated the deliberative process itself. We are not persuaded that the record compels that conclusion.
As the dissent pointed out, Juror Number Two's request to be excused came immediately after the jury asked for a readback of Investigator Kee's and Moore's descriptions of the three suspects, and a readback of all of Williams' testimony. Identification was plainly a key, if not the key, issue in the case. The jury's request for a readback regarding the identification of defendants suggests that the jury had not resolved that critical issue. Although Juror Number Two's statement that he gave it his best shot, standing alone, could be understood to refer to the deliberative process, the statement should not be read in isolation. Examined in the context of his entire exchange with the trial judge, it appears that the juror simply was expressing his need to resume earning money. Immediately before stating that he gave it his best shot, Juror Number Two explained that he was not being paid during his jury services. He was stressing that he had remained on the jury for three days. To one who requires daily wages, not working for three days out of a week can significantly affect that wage- earner's ability to be “on track” for normal weekly expenses. His comments in their totality convinced the trial court, who observed him, that this was a juror whose concern for the financial hardship already visited upon him prevented him from providing further jury service. Any additional financial loss apparently was more than this juror believed he could bear. The record does not reveal that the juror's request to be dismissed stemmed from any aspect of his interactions with his fellow jurors. To the contrary, the record suggests that his request was linked solely to his financial situation.
Further, although prior to Juror Number Two's dismissal, the jury deliberated for approximately three hours, it appears that the jury had not progressed so far in its deliberations that the substitution of an alternate could not fairly be accomplished. No bright line rule in respect of the length of jury deliberations triggers a finding that deliberations have progressed too far to permit the substitution of an alternate. Here, the precise number of hours and minutes of the prior deliberations are less important because Juror Number Two was excused immediately after the court granted the jury's request for a readback of critical identification testimony. The jury could not have reached a determination of guilt or innocence. On the contrary, the readback requests demonstrate uncertainty concerning guilt or innocence. And, on recommencing deliberations the next day, the jury deliberated for a length of time equivalent to that spent in deliberations before the readback.
In sum, we do not view the jury deliberations to have progressed to such a point that the new juror would not have a realistic opportunity to share in the deliberative process. Corsaro, supra, 107 N.J. at 354. Moreover, consistent with Miller, supra, after dismissing Juror Number Two and selecting an alternate, the trial court specifically instructed the jury to begin deliberations anew. 76 N.J. at 407. We decline to overturn that exercise of discretion by the trial court, especially as a matter of plain error.
Jury service is a civic duty that each individual owes to the community. Silagy, supra, 101 N.J. Super. at 461. Financial hardship associated with jury duty is an issue best resolved before the jury is sworn, and ordinarily it is. But a jury of one's peers requires inclusion of all members of the community, excluding no socio-economic group from potential service. Daily wage earners, or others who cannot serve on a jury for long because of salary or wage deprivation, may not be excluded categorically. Our holding acknowledges the financial realities associated with jury service, where an unexpected additional day or two without wages can make a significant difference to a juror, giving rise to a true hardship. But only an individually- demonstrated financial hardship should relieve an already deliberating juror. We do not attempt here to delineate how much financial hardship is necessary under Rule 1:8-2(d). The trial court is in the best position to assess the financial reality of continued jury service on a particular juror and to perceive the stress and concern that that may have on the juror's ability to deliberate fairly and fully. Review of an appellate record never fully substitutes for a trial court's interaction with the juror, which includes witnessing the tone and demeanor of the person. To assist with appellate review, the trial court should provide as complete and detailed a record as possible when examining and ruling on a deliberating juror's claimed hardship.
Also, here the trial court informed the parties outside the presence of the jury that a juror had asserted that he could not return for deliberations the next day and, assuming the excuse valid, the parties agreed on a substitution procedure. The trial court reconvened the jury and questioned Juror Number Two in its presence. That procedure did not allow the defense attorneys to object to or discuss the dismissal outside the presence of the jury once Juror Number Two presented his reason for not being able to return. A better approach would be for the trial court to examine the juror outside the presence of the entire jury so that counsel may be uninhibited by any concern for the potential impact on the remaining jurors when discussing the dismissal and substitution.
In summary, we decline to find the decision to dismiss Juror Number Two to be plain error. Although we believe that the colloquy between a court and a juror asserting hardship should strive to obtain a full picture of the individualized hardship to a juror if he or she were required to continue with deliberations until completion, we are unwilling to reject the trial court's determination when all counsel agreed to the substitution at the time and we discern no unfair prejudice to defendant in terms of the jury's deliberative process.
The judgments of the Appellate Division are reversed and these matters are remanded to the Appellate Division for further proceedings. Notwithstanding the failure of defendants Williams and McCloud to file protective cross-petitions pursuant to Rule 2:12-11, on remand the Appellate Division is directed to address defendants' other claims of error that were not resolved in the court's previous judgments.
CHIEF JUSTICE PORITZ and JUSTICES STEIN, COLEMAN, LONG, VERNIERO, and ZAZZALI join in JUSTICE LaVECCHIA's opinion.
NO. A-106/107 SEPTEMBER TERM 2000
ON APPEAL FROM Appellate Division, Superior Court
and
ON CERTIFICATION TO Appellate Division, Superior Court
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
JOEL WILLIAMS, a/k/a JOHN
SNOWE and JOEL DERRICK
WILLIAMS,
Defendant-Respondent.
______________________________
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
MONROE MCCLOUD, a/k/a
TONY/MANNY MCCLOUD,
Defendant-Respondent.
DECIDED March 18, 2000
Chief Justice Poritz PRESIDING
OPINION BY Justice LaVecchia
CONCURRING OPINION BY
DISSENTING OPINION BY