The opinion of the court was delivered by
FUENTES, P.J.A.D.
We consolidate these two appeals because Rashon Brown and Malik Q. Smith were tried together before the same jury. The jury found both defendants guilty of first degree carjacking and other related offenses. We are compelled to reverse the jury's verdict because the trial judge failed to remove a deliberating juror who disclosed her racial bias to two of her fellow jurors and to the judge.
Specifically, on the second day of deliberations, Juror 4 told Jurors 5 and 12 she was "concerned" and "nervous" because she had seen two African-American men that morning in the neighborhood where she lives. Juror 4 noted, "[t]hey certainly don't live around there, and they don't hang around there." Juror 5, who works in that area, agreed that this seemed strange because that area "mostly is Italian and White people. There really are no Black people around there." Because both defendants are African-American, Juror 4 feared the presence of two African-American men in her neighborhood may have had some kind of sinister connection to the trial.
Jurors 5 and 12 were sympathetic with juror 4's predicament and suggested she should report her concerns to the Sheriff's Officer who was assigned to secure the jury during deliberations. The Sheriff's Officer informed the trial judge, who then questioned each of the three jurors separately. The judge decided to allow all
On these facts, we are compelled to reverse. When Juror 4 inferred a sinister conspiratorial purpose from a facially innocuous event, based only on the race of the participants, she revealed a deeply-rooted, latent racial bias that required her removal from the jury. The trial judge erred in permitting her to remain on the jury and continue deliberating merely based on the juror's self-serving denial of racial bias. Her initial instinctive, subliminal association of race with criminality or wrong-doing far trumped her subsequent assurances of impartiality. In her willingness to come forward and candidly report her misgivings, Juror 4 also revealed her unawareness of how engrained her racial bias was in her subconscious. This incongruity between Juror 4's conscious acts and latent beliefs is one of the most pernicious, unintended aspects of our jury system.
Our pretrial jury selection screening process is designed and intended to detect and filter out jurors who harbor views or beliefs that are per se incompatible with the judiciary's mission to deliver equal justice under law. However, like all things designed by the human mind, the pretrial jury selection process is not perfect. This requires our colleagues at the trial level to be in a constant state of vigilance throughout a jury trial for any signs of racial bias or other extraneous matters that may affect a juror's impartiality. Once a juror's latent or overt racial bias is discovered, the juror must be removed from the jury. Thereafter, the judge must conduct a comprehensive, fact-sensitive inquiry to determine whether the removed juror's odious beliefs are shared by any other member of the jury or has otherwise tainted the remaining jurors to such an extent that a mistrial is warranted.
Furthermore, and independent of this error, the trial judge also failed to take proper measures to determine whether Jurors 5 and 12, who initially shared Juror 4's concern and advised her to report this event to the Sheriff's Officer, harbored similar latent racial biases. As we will discuss and explain in greater detail, infra, the record shows the trial judge also failed to conduct a thorough and probing examination of these two jurors. This failure left unresolved whether Jurors 5 and 12 were capable of discharging their duty to judge the evidence fairly and impartially.
On April 2, 2009, a Union County Grand Jury returned Indictment No. 09-04-00281, charging defendants Rashon Brown and Malik Q. Smith with first degree carjacking, N.J.S.A. 2C:15-2, first degree armed robbery, N.J.S.A. 2C:15-1, second degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a, second degree unlawful possession of a firearm, N.J.S.A. 2C:39-5b, third degree terroristic threats, N.J.S.A. 2C:12-3a and/or N.J.S.A. 2C:12-3b, fourth degree resisting arrest, N.J.S.A. 2C:29-2a, and fourth degree possession of a prohibited device in the form of a type of ammunition known as "hollow nose"
The same indictment charged Brown with third degree aggravated assault by "knowingly, under circumstances manifesting extreme indifference to the value of
Defendants were tried together over a ten-day period commencing on February 22, 2012, and ending on March 14, 2012. The jury found Brown guilty of all of the charges, except for two counts. The jury acquitted Brown of second degree aggravated assault by pointing a handgun at two police officers, N.J.S.A. 2C:12-1b(9),
The trial court sentenced Brown to serve an aggregate term of twenty-five years, subject to an eighty-five percent period of parole ineligibility and five years of parole supervision as mandated by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The court sentenced Smith to serve an aggregate term of twenty-three years, subject to an eighty-five percent period of parole ineligibility and five years of parole supervision as mandated by NERA. Brown filed his notice of appeal on September 6, 2012. Smith filed his notice of appeal on March 18, 2014.
Brown and Smith are represented by separate appellate counsel and have filed separate briefs. Brown has also filed a supplemental pro se brief raising additional arguments. However, both defendants have raised the issue of racial bias with respect to one juror, and demand we vacate the jury's verdict and remand the matter for a new trial. Because the trial court's error with respect to this one issue is of sufficient magnitude to vitiate the legal viability of the jury's verdict as a whole, we need not and specifically do not reach the remaining arguments raised by both defendants.
We recite the following facts from the evidence presented at trial.
On December 11, 2008, at approximately 2:20 p.m., Evelyn Arroyo-Maultsby was inside her brand new, white Infiniti that she had parked in front of her daughter Janna's apartment complex located on Schley Street in the Township of Hillside. She was waiting for Janna, who had gone into her apartment to retrieve something. While she waited, a young man tapped on her car window and opened the door. Thinking he may have been confused, Arroyo-Maultsby grabbed the door to close it, and said, "this is my car." The man told her to "get out of the car" and grabbed the door again. He then told her to get of the car again. It was at that moment that Arroyo-Maultsby asked, "[a]re you carjacking me[?]" The man just looked at her and again demanded that she get out of the car.
Arroyo-Maultsby begged the young man not to do this. She testified she told him repeatedly he was going to ruin his life. At that point, the man opened his
In response to the prosecutor's question, Arroyo-Maultsby gave the following description of her assailant:
The witness also described her assailant as a young Black man, with black hair, and no facial hair.
When this brief harrowing encounter ended, Arroyo-Maultsby began walking toward the front of her daughter's building. As she approached, she saw her daughter standing there. Arroyo-Maultsby motioned to her daughter to remain where she was because she was afraid of what could happen to her if she made any kind of movement. However, Arroyo-Maultsby mouthed the words "9-1-1" to her daughter, but Janna signaled she did not have a cell phone. Arroyo-Maultsby then saw the young assailant get into her car. As he backed up the vehicle, she turned around and saw a second man walking around the car. At that moment she realized this second man was waiting to get into the passenger seat of her car. The two men drove away, heading south towards Route 78.
Arroyo-Maultsby called 9-1-1 immediately thereafter to report the carjacking.
Once the Infiniti was completely blocked, Ross saw "[t]he driver immediately jump[] out of the car and had in his hand a black semi-automatic handgun." When Ross yelled "gun," the driver "immediately turned and bolted over a fence that was at the house's driveway." Detective Corvelli also testified he yelled "gun, gun," when he saw the driver run from the scene after he stepped out of the boxed-in vehicle. Ross and Corvelli both testified they saw the driver point the gun at them immediately before he fled.
Ross also saw a person jump out of the passenger side of the Infiniti. This person ran between the vehicles towards Ross, "at which time [Ross] grabbed him by his jacket." Ross testified that by grabbing his jacket, it caused him to "[spin] ... around so we were facing each other. He pulled out of my grasp and ran east on St. James [Place]." The four police officers at the scene immediately began to pursue both suspects on foot. Holmes and Corvelli hopped over the fence and pursued the driver down a driveway and into a yard; Ross and Ricci pursued the passenger. Corvelli testified they lost sight of the driver when he jumped over another fence adjacent to Willoughby Street.
Ross stopped pursuing the passenger when he heard "shots fired" when he was "[m]aybe a house ... and a half away from the original crime scene." Corvelli also testified to hearing gunshots fired. When Corvelli reached Willoughby Street, he learned the gunshots had been fired by Detective Holmes. Corvelli estimated he heard four or five gunshots. Holmes had shot the alleged driver of the Infiniti in the foot. This man was subsequently identified as defendant Rashon Brown.
According to Corvelli, in the process of searching the area for Brown, "a lady" motioned to them through a window that "she saw an individual either hide under her porch or go into her porch area." Corvelli yelled to Lieutenant Ross that the driver was hiding in the porch area. Ross, who had been pursuing the passenger down St. James Place until he heard the gunshots, ran back towards Holmes and Corvelli. They eventually found Brown hiding under a pile of clothes on the woman's porch. Brown was taken to the hospital, where he identified himself as Kareem or Kashawn Ledbetter. Ross and Corvelli identified defendant at trial as the driver of the vehicle and the man they apprehended.
Arroyo-Maultsby learned the police had recovered her car while she was still in front of her daughter's apartment complex. She therefore went to the Hillside Police Department to submit her formal statement. Arroyo-Maultsby and her family went to the Newark Police Department the following day to reclaim her pocketbook
Arroyo-Maultsby eventually identified defendant Brown as the person she saw at the Newark Police Station on December 12, 2008. He was the same person who carjacked her car the previous day, December 11, 2008. Arroyo-Maultsby emphasized no one told her ahead of time she would see the man who the police had arrested and charged with carjacking her car. She was there only to sign the consent form to permit the police to search her car.
Lieutenant Joseph Zeiser of the Newark Police Department testified he saw Arroyo-Maultsby sitting and talking with one of the detectives when he noticed she became visibly upset. He walked over and asked her whether she needed any assistance or medical attention. According to Zeiser, she told him "that was the guy who carjacked me yesterday." Because Zeiser
The State also called two expert witnesses as part of its case-in-chief. Monica Ghannam, a forensic scientist from the Union County Prosecutor's Office, and Thomas Chung, an expert in firearms, ballistics, and tool mark examination. Ghannam tested three items recovered inside the Infiniti: a pair of gloves, a black and white glove, and a red baseball hat. She excluded Brown as a DNA contributor to the red baseball hat and to one of the gloves. Chung examined five handguns, four of which were police service weapons, as well as four spent casings discharged from Holmes' service weapon. The non-police firearm was a Sig Sauer semi-automatic pistol loaded with nine live rounds of ammunition, one of which was a hollow point bullet. Chung found this weapon initially inoperable until he cleaned it. He testified the weapon was fully operable.
Brown testified in his own defense. He was eighteen years old at the time of the carjacking. He denied having had anything to do with the carjacking. Brown testified he stopped to speak briefly with the occupants of the white Infiniti when he noticed the unmarked police cars and decided to leave before they suspected him of being involved in some wrong-doing. He witnessed the unmarked police vehicles "box-in" the white Infiniti. Brown testified he saw two men flee from inside the Infiniti when the police officers stepped out of their unmarked cars with their guns drawn.
From this point, Brown said he ran toward Willoughby Street because he saw Detective Holmes chasing him with his gun drawn. As he jumped over a gate, Brown testified Holmes shot him in the foot. He ran to a nearby house where the police eventually found him. Brown denied ever having a handgun on that day. Defense counsel also called Jason Glover, a friend of defendant Brown. Glover testified Brown was at his house earlier that day, prior to the arrest. He testified Brown left the house approximately half an hour before Brown was arrested. Glover further testified that about ten minutes before discovering Brown had been arrested, he heard shots. Glover resides on the corner of Aldine Street and St. James Place. Glover was twenty-four years old at the time of trial. He admitted to having prior criminal convictions. At the time he testified, Glover was in a halfway house as part of a four-year sentence he received for a third degree offense.
In the process of canvassing the area where the carjacking occurred, Detective Ricci located an individual who claimed to have witnessed Smith get out of the white car. He described Smith as having a tattoo on his left forearm. Ricci and another detective searched the Essex County Jail's website for the name "Malik Smith" and found four matches. Defendant Smith was one of those four matches. Although Ricci did not see the man who ran from the passenger side of the Infiniti, he believed Smith was a viable candidate to include in the photo array because he matched the height, weight, and had a left forearm tattoo.
Approximately one month after Brown's arrest, Lieutenant Ross testified that Detective Ricci told him they had a suspect in the carjacking case. Ricci wanted Ross to look at a photographic
Despite Lieutenant Ross's seniority in the Hillside Police Department and experience as a police officer, Ross testified he told Corvelli to explain to him the process and protocol involved in identifying an individual through this procedure:
The investigating detectives did not show the photo array to Arroyo-Maultsby or her daughter Janna because neither were able to describe the second individual who was in the passenger side of the car. Ghannam, the forensic scientist from the Union County Prosecutor's Office, found she could not exclude Smith as a major DNA contributor in material she recovered from a glove recovered from inside the Infiniti by Detective Ricci. Ghannam also opined she could not exclude Smith as a major DNA contributor to the red baseball hat found in the Infiniti.
Smith did not call any witnesses and did not testify in his own defense. The court denied his pretrial motion to exclude the photo array identification.
Defendant Brown, through counsel, raises the following arguments:
Brown has also filed a pro se supplemental brief in which he raises the following additional argument points:
Smith, through counsel, raises the following points in his appeal:
Both defendants raised the manner in which the trial court handled the disclosure juror 4 made during the second day of jury deliberations as a dispositive issue in these appeals. We agree. A comprehensive recitation of the event is necessary, before we address the legal implications of the trial judge's decision.
At the start of the afternoon session on the second day of jury deliberations, the trial judge addressed the attorneys to place the following event on the record:
The trial judge excused Juror 12 and gave her the same admonition he had given the other three jurors, to refrain from discussing what had transpired with the remaining members of the jury. The record indicates there was a request by the jury for a read back of some testimony. After this concluded, Brown's counsel addressed the judge in open court, but out-side the presence of the jury, and moved for a mistrial. Brown's counsel indicated his motion was based on Juror 4's comments, together with the comments made by Juror 5. Alternatively, Brown's counsel asked the court to remove Jurors 4 and 5, and replace them with the two alternates. Smith's counsel joined in both motions. Smith's counsel made the following argument in support of her application:
The prosecutor opposed defendants' applications for either a mistrial or for the removal of Jurors 4 and 5. The prosecutor maintained that Juror 4 specifically declared that the experience she had had earlier that same day did not affect her ability to remain impartial. The prosecutor noted that in "the realities of life and of jury duty ... you hear facts that, for many people in this box, are not part and parcel of their everyday life."
The trial judge stated, "Prosecutor, I concur with you." The judge again stated how it is his practice to speak to jurors at the end of trials to discuss customer service issues, things that we could do better in order to make their jobs easier.
Brown's counsel emphasized that the facts showed Juror 4 saw a possible nefarious connection between the two African-American men in a Caucasian neighborhood and her service as a juror in a case involving two African-American defendants. The judge rejected counsel's argument, stating: "We cannot deal at a jury selection level with subconscious behavior. We tell the jury that we understand that we expect to some extent people have developed certain prejudices, some fixed ways of thinking ... The fact that they might does not exclude them from service as jurors."
At the conclusion of the read back of certain testimony, the judge addressed the jury in open court:
Approximately one hour later, the jury returned its verdict findings defendants guilty on most of the charges reflected in the verdict sheet.
Our Supreme Court has emphatically stated that "[a] defendant's right to be tried before an impartial jury is one of the most basic guarantees of a fair trial." State v. Loftin, 191 N.J. 172, 187, 922 A.2d 1210 (2007); State v. Tindell, 417 N.J.Super. 530, 562-563, 10 A.3d 1203 (App.Div. 2011). The Sixth Amendment of the United States Constitution and Article I, paragraph 10 of the New Jersey Constitution guarantee criminal defendants "the right to ... trial by an impartial jury." U.S. Const. amends. VI, XIV; N.J. Const. art. I, ¶ 10. "That constitutional privilege includes the right to have the jury decide the case based solely on the evidence presented at trial, free from the taint of outside influences and extraneous matters." State v. R.D., 169 N.J. 551, 557, 781 A.2d 37 (2001).
The Court has stressed that jurors must be "as nearly impartial `as the lot of humanity will admit.'" State v. Singletary, 80 N.J. 55, 62, 402 A.2d 203 (1979) (quoting State v. Jackson, 43 N.J. 148, 158, 203 A.2d 1 (1964), cert. denied sub nom. Ravenell v. New Jersey, 379 U.S. 982, 85 S.Ct. 690, 13 L.Ed.2d 572 (1965)). "A trial is poisoned at its inception if the jurors deciding the case cannot review the evidence dispassionately, through the light of reason." State v. Fortin, 178 N.J. 540, 575, 843 A.2d 974 (2004). For this reason, "all doubts about a juror's integrity or ability to be fair should be resolved in favor of removing the juror from the panel." Loftin, supra, 191 N.J. at 187, 922 A.2d 1210.
A trial court has discretion to remove and replace a deliberating juror "because of [the juror's] illness or other inability to continue." R. 1:8-2(d)(1). Although seemingly vague and broad, the "inability to continue" standard must be narrowly construed and sparingly applied. State v. Jenkins, 182 N.J. 112, 124, 861 A.2d 827 (2004); State v. Hightower, 146 N.J. 239, 254, 680 A.2d 649 (1996). "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, 680 A.2d 649 (citing State v. Lipsky, 164 N.J.Super. 39, 43, 395 A.2d 555 (App.Div. 1978)).
The reason behind a juror's inability to continue must be "personal and unrelated to the juror's interaction with the other jury members." State v. Valenzuela, 136 N.J. 458, 473, 643 A.2d 582 (1994).
Courts have sanctioned the removal and replacement of deliberating jurors under the "inability to continue" standard in a variety of different circumstances. See, e.g., State v. Williams, 171 N.J. 151, 167, 793 A.2d 594 (2002) (juror complained of financial hardship); State v. Miller, 76 N.J. 392, 401-02, 388 A.2d 218 (1978) (juror was too nervous and could not render a fair verdict); State v. Trent, 157 N.J.Super. 231, 239-40, 384 A.2d 888 (App.Div. 1978) (juror under emotional distress because defendant reminded her of her son), rev'd on other grounds, 79 N.J. 251, 398 A.2d 1271 (1979).
Although a deliberating juror's bias or prejudice falls within the "inability to continue" standard, the court, in opting for substitution rather than a mistrial, must ensure, by appropriate voir dire, that the other jurors were not tainted by the removed juror. Pressler & Verniero, Current N.J. Court Rules, comment 4.3.2 on R. 1:8-2 (2014). "When a jury is exposed to extraneous information after deliberations have begun, a mistrial will almost always be required." Hightower, supra, 146 N.J. at 255, 264, 680 A.2d 649 (court erred in removing a juror and not granting a mistrial where the juror informed the others that the victim had children). See also State v. Adams, 320 N.J.Super. 360, 365-69, 727 A.2d 468 (App.Div.) (court erred in removing a juror and not granting a mistrial where the juror told the others that police often beat accused criminals), certif. denied, 161 N.J. 333, 736 A.2d 526 (1999).
The decision to grant a new trial based on jury taint resides in the discretion of the trial court. But, if juror misconduct or bias has a tendency to influence the jury, a new trial should be granted without further inquiry as to its actual effect. R.D., supra, 169 N.J. at 558, 781 A.2d 37 (citing Hightower, supra, 146 N.J. at 266-67, 680 A.2d 649; Panko v. Flintkote Co., 7 N.J. 55, 61, 80 A.2d 302 (1951)). "The test is not whether the irregular matter actually influenced the result, but whether it had the capacity of doing so." Panko, supra, 7 N.J. at 61, 80 A.2d 302.
"A new trial, however, is not necessary in every instance where it appears an individual juror has been exposed to outside influences." R.D., supra, 169 N.J. at 559, 781 A.2d 37. In deciding whether to grant a new trial, a trial court must consider:
When "it becomes apparent that a juror may have been exposed to extraneous information, the trial court must act swiftly to overcome any potential bias and to expose factors impinging on the juror's impartiality." Id. at 557-58, 781 A.2d 37 (citing State v. Bey, 112 N.J. 45, 83-84, 548 A.2d 846 (1988)).
An appellate court reviews the trial court's jury-related decisions under the abuse of discretion standard. Id. at 559, 781 A.2d 37. This standard respects the trial court's unique perspective and the traditional deference we accord to trial courts in "exercising control over matters pertaining to the jury." Id. at 559-60, 781 A.2d 37. However, "an appellate court is not bound by a determination when the `particular circumstances present such a strong likelihood of prejudice that, as a matter of law,' the juror should have been removed." Loftin, supra, 191 N.J. at 192, 922 A.2d 1210 (quoting State v. Biegenwald, 106 N.J. 13, 91, 524 A.2d 130 (1987)).
Here, the trial judge abused his discretion in failing to remove Juror 4. The record is replete with unambiguous evidence revealing Juror 4's racial bias. In her own words, she revealed how she immediately construed the presence of two African American men in her all white neighborhood as a menacing sign of possible retaliation by defendants, merely because they were also African American men. Even more disturbing, however, is the trial judge's reaction to Juror 4's revelations. The judge was not only oblivious to the juror's unmistakable racial bias, but he actually endorsed the juror's misguided apprehensions. The judge made his point of view on the subject of racial bias and prejudice clear when he denied Brown's defense counsel's motion to remove Jurors 4 and 5. "[W]e expect to some extent people have developed certain prejudices, some fixed ways of thinking."
The judge's impromptu, sua sponte "instructions" to the jury, made soon after the judge had finished interviewing the four jurors in his chambers, dispels any lingering doubt an objective viewer could have about the judge's willingness to accept racial bias in a juror as an unavoidable reality of life.
These remarks coming from a sitting judge in a criminal trial are plainly inappropriate under any circumstances, but especially when they are uttered in a trial involving two African American defendants. A juror's expression of "racial consciousness and potential racism" must be immediately repudiated, and the juror must be removed from the jury. Thereafter, the trial judge must conduct a thorough, comprehensive, and probing investigation to determine what influence the
Here, the judge's voir dire of Jurors 3, 5, and 12 was completely inadequate and fell far short of what was required under the circumstances. The judge did not ask any open ended questions. He began each of the interviews with these jurors with a variation of the statement, "Juror 4 expressed to you some concern about what she saw." The judge did not ask the jurors to recite what Juror 4 had told them. His "examination" of these jurors seemed designed to confirm his predisposition to find Juror 4's irrational, racist fears after seeing two African American men in her all white neighborhood as a completely justified and understandable reaction on her part. The judge accepted as sound and prudent Juror 5's advice to Juror 4 to report to a Sheriff's Officer that she had seen two African American men that morning in the park located outside her residence.
It is clear the judge found Juror 4's fears in this respect understandable. Indeed, the judge noted several times on the record his practice of speaking to jurors at the conclusion of trials and conduct his own version of a "customer service" interview. The judge highlighted that in the course of conducting these post-trial interviews, "juror safety and ... [the] potential retaliation for verdicts" was a key and consistent concern expressed by most of the jurors he has interviewed. This statement reveals, with indisputable clarity, the judge's profound misapprehension of the significance of the sentiments expressed by Juror 4 and 5. The judge considered the jurors' expressions of racial bias as legitimate fears to be addressed systemically by providing more security and ensuring the anonymity of the jurors. These views are utterly irreconcilable with one of the core principles of this State's judiciary, the delivery of equal justice under law to all of our citizens.
We have taken the time and effort to describe the record in these two consolidated appeals in great detail, because we wanted to reveal the profound, highly prejudicial errors that infected this trial, and by so doing, provide guidance to our colleagues at the trial level on how to address these highly contentious and profound issues when they arise. The essence of racial profiling is to associate criminality or wrongdoing as an aspect of a person's race or ethnic background. We have unequivocally condemned this specious and hateful practice when it was used by the law enforcement community in this State to target minority motorists as they travelled our highways. We must adopt the same policy of zero tolerance when a version of such an odious concept contaminates, to any degree, the jury's deliberative process. Racial bias is repugnant to any notion of fairness or impartiality; it is the antithesis of justice under the law.
Under these circumstances, we are compelled to reverse and vacate the convictions of both defendants Brown and Smith and remand the matter for retrial. Because this outcome is dispositive of this appeal, we do not address the remaining arguments raised by both defendants.
Reversed and remanded. We do not retain jurisdiction.
ASHRAFI, J.A.D., concurring in the result.
I concur in the court's judgment. During deliberations, a juror expressed to other jurors and the judge an unjustified fear of retaliation by defendants because of an event unconnected to the trial and an invidious racial stereotype she harbored. The impartiality of the jury was thus tainted.
