State v. Michael Ross, II (072042)

, (App. Div. 2007) barred trial courts from substituting a
juror and directing new deliberations, by virtue of the fact that the original jury had reached an initial impasse and
was charged to continue deliberations and attempt to reach an agreement, it is overruled. An initial impasse does not
necessarily signal the end of meaningful deliberation. To the contrary, the charge to a deadlocked jury instructs
them to consider the viewpoints of other jurors with an open mind. A juror substitution, necessitated by illness, that
conforms with Rule 1:8-2(d)(1) does not alter that conclusion. (pp. 28-30)

The judgment of the Appellate Division is REVERSED. Defendant’s convictions are REINSTATED.

JUDGE CUFF, DISSENTING, expresses the view that because the jury had previously reached an
impasse, its deliberations had proceeded too far to permit the trial court to substitute an alternate.

CHIEF JUSTICE RABNER, JUSTICE LaVECCHIA, JUSTICE FERNANDEZ-VINA, and JUDGE
RODRÍGUEZ (temporarily assigned) join in JUSTICE PATTERSON’s opinion. JUDGE CUFF
(temporarily assigned) filed a separate, dissenting opinion. JUSTICE ALBIN did not participate.

2
SUPREME COURT OF NEW JERSEY
A-67 September Term 2012
072042

STATE OF NEW JERSEY,

Plaintiff-Appellant,

MICHAEL ROSS II,

Defendant-Respondent.

Argued January 6, 2014 – Decided June 24, 2014

On certification to the Superior Court,
Appellate Division.

Nancy A. Hulett, Special Deputy Attorney
General/Acting Assistant Prosecutor, argued
the cause for appellant (Andrew C. Carey,
Acting Middlesex County Prosecutor,
attorney).

Jay L. Wilensky, Assistant Deputy Public
Defender, argued the cause for respondent
(Joseph E. Krakora, Public Defender,
attorney).

JUSTICE PATTERSON delivered the opinion of the Court.

During the trial of defendant Michael Ross II for two

counts of first-degree murder, two weapons offenses and

hindering apprehension, the jury twice interrupted its

deliberations to communicate with the trial court. On the fifth

day of deliberations, the jury advised the court that it was

“unable to reach a unanimous decision on any count” of

defendant’s indictment, and sought instruction from the court.

1
The trial court directed the jury to resume deliberating, with a

view to reaching an agreement, if such agreement could be

achieved without impairing the judgment of individual jurors.

The jury complied, but later that day communicated with the

court to report that one of the jurors had become ill. After

dismissing the jury for the day and speaking with the ailing

juror the following morning, the trial court excused her from

further service. Without objection from the State or defendant,

the court substituted an alternate juror for the excused juror.

The reconstituted jury, instructed to initiate new deliberations

with the full participation of the substituted juror,

deliberated for more than sixteen hours and convicted defendant

of all charges. Defendant appealed, and an Appellate Division

panel reversed, holding that the trial court’s decision to

substitute an alternate for the ailing juror constituted plain

error.

We hold that in the circumstances of this case, the trial

court properly addressed both of the issues raised by the jury

in the course of its deliberations. The trial court’s

instruction to the jury to continue deliberations,

notwithstanding its initial report of a deadlock, conformed to

this Court’s decision in State v. Czachor,

82 N.J. 392, 404-06

(1980).   Confronted with a report that a juror was unable to

continue because she was ill, the trial court verified that the

                                  2
juror’s inability to continue was prompted by her condition,

rather than a dispute among the jurors.   The trial court then

substituted an alternate in accordance with Rule 1:8-2(d)(1) and

properly instructed the reconstituted jury to commence new

deliberations.   In its response to both developments, the trial

court preserved the confidentiality and integrity of the jury’s

deliberations and protected defendant’s right to a fair trial.

    Accordingly, we reverse the judgment of the Appellate

Division, and reinstate defendant’s convictions.

                                I.

    On October 30, 2003, Alesky Bautin and Sergey Barbashov

were shot and killed while sitting in Barbashov’s parked vehicle

in front of an apartment complex in Avenel.   More than three

years later, defendant was indicted for two counts of first-

degree murder, N.J.S.A. 2C:11-3(a)(1),(2); second-degree

possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-

4(a); third-degree unlawful possession of a weapon, N.J.S.A.

2C:39-5(b); and third-degree hindering apprehension or

prosecution, N.J.S.A. 2C:29-3(b)(1).

    Defendant’s trial commenced on April 1, 2008, and continued

for eight trial days.   The State’s theory of the case was that

defendant shot the victims after mistaking one of them for a man

who had pointed a gun at him from a car similar to the victims’

vehicle.   In the course of the trial, the jury heard the

                                 3
testimony of twenty witnesses, including three expert witnesses

called to opine as to the cause of the victims’ deaths.   The

prosecution and defense introduced into evidence more than one

hundred exhibits.   Defendant testified on his own behalf,

denying any involvement in the murders.   During summation,

defense counsel suggested that two of defendant’s acquaintances,

not defendant, were responsible for the shooting.

    The trial court charged the jury on April 16, 2008.       At the

close of the charge, the trial court advised the jurors that

they could pose questions or communicate with the court by

writing a note and handing it to a court officer.   The trial

judge promised to respond to any questions posed as quickly as

possible, and admonished the jurors to avoid disclosing the

status of their deliberations to the court and counsel in the

event that they decided to ask a question.   The court then

randomly selected three jurors to serve as alternates.

    The jury deliberations commenced during the afternoon of

April 16, 2008, and continued that day for less than an hour.

The jury then deliberated for more than four hours on April 17,

2008, and for a similar period on April 18, 2008.   During the

first three days of deliberation, the jury posed procedural

questions to the trial judge and requested readbacks of the

testimony of two witnesses.   The jury deliberated for more than

five hours on the fourth day, April 21, 2008.   Late that day,

                                 4
the jurors sought clarification “in layman’s terms” of the

meaning of reasonable doubt.    They were told by the trial court

that they would be charged on that subject the following day,

and that they should suspend deliberations for the evening.     The

jury was excused at 3:42 p.m.

    The following day, after being charged with respect to

reasonable doubt, the jury sent to the trial court a note

stating: “The jury was unable to reach a unanimous decision on

any count.   What is your next instruction?”   With no objection

from either counsel, the trial court read to the jury the Model

Criminal Jury Charge based on

82 N.J. 392

 (the

Czachor charge).   See Model Jury Charge (Criminal), “Judge’s

Instructions on Further Jury Deliberations” (Jan. 14, 2013).

The trial court instructed the jury:

         So, ladies and gentlemen, it’s your duty as
         jurors to consult with one another and to
         deliberate with a view to reaching an
         agreement, if you can do so without violence
         to individual judgment.    Each of you must
         decide the case for yourself, but you do so
         only after an impartial consideration of the
         evidence with your fellow jurors.     In the
         course   of   your  deliberations,   do  not
         hesitate to reexamine your own views, change
         your opinion, if convinced it’s erroneous.
         But do not surrender your honest conviction
         as to the weight or effect of evidence
         solely because of the opinion of your fellow
         jurors or for the mere purpose of returning
         a verdict. You are not partisans. You are
         judges, judges of the facts.



                                  5
    After receiving the Czachor charge and taking a lunch

break, the jury deliberated for about two and one-half hours.

The trial judge then received a note from the jury stating:

“Juror No. 5 is sick and does not expect to be here tomorrow.

Thank you.”    In the presence of counsel, the trial court

questioned Juror No. 5 about her condition.    Juror No. 5 stated

that she had “a terrible headache,” and that her “stomach [was]

nauseous.”    The trial judge told the juror “to go home” for the

day and to call the court in the morning if she was “not feeling

up to” coming in.

    The following day, April 23, 2008, Juror No. 5 called the

trial judge’s chambers and advised the judge’s assistant that

she was “still ill” and that she could not return to court.

With counsel present, the trial judge contacted the juror by

telephone.    The juror confirmed on the record that she had

advised the judge’s assistant that she remained ill.    She stated

that she had a “[h]eadache and sore throat and nauseous

stomach,” and that she “wouldn’t be able to make it” to court

that day.    After verifying that neither counsel had questions

for the juror, the judge excused her from further participation

in the trial, admonished her not to discuss the case while it

remained pending, and thanked her for her service.

    The trial court then confirmed on the record a prior

discussion in which the court and counsel “agreed that [the

                                  6
court was] going to substitute a new juror.”     The court noted

that although the jury had deliberated for more than four days,

there was no indication that it had “made any actual fact

findings or reached any determinations of guilt or innocence,”

or that it had rendered a partial verdict.     The court concluded

that there was “nothing that would indicate that a new juror

[would] not play a meaningful role in deliberations.”     It

recounted the communications received from the jury the previous

day, and asked counsel to confirm their positions regarding the

replacement of the juror on the record.

    The prosecutor noted her agreement with the court’s

decision.    Defense counsel stated that he had no objection.       He

noted “that had the jury come back” after being charged to

resume deliberations, and stated that it could not reach a

unanimous verdict, “then we’d be talking [about] a different

scenario.”   Defense counsel commented that since there was only

one note from the jury indicating its inability to reach a

verdict, followed by the trial court’s Czachor instruction and

the report of the juror’s illness, “I don’t think there’s any

credible way to even form an objection, if I had one.”

    The court clerk then randomly selected one of the three

alternate jurors to serve as a substitute juror.     In accordance

with the Model Criminal Jury Charge, the trial court advised the

jurors that “as of this moment, you are now a new jury.”       It

                                 7
instructed them to set aside any statements made in

deliberations prior to the departure of the excused juror and to

disregard any opinions expressed by that juror.   The court

admonished the jury to “consider all evidence presented at trial

as part of your full and complete deliberations until you reach

your verdict.”   See Model Jury Charge (Criminal), “Judge’s

Instructions When Alternate Juror Empaneled After Deliberations

Have Begun” (Jan. 14, 2013).

    The reconstituted jury commenced its deliberations on April

23, 2008, after receiving the trial court’s instructions.     It

met for five hours before being excused for the day.   The jury

deliberated for four and one-half hours on April 24, 2008, and

requested a readback of testimony different from the testimony

that the original jury had requested during its deliberations.

The jury deliberated for five and one-half hours on April 25,

2008.   On April 29, 2008, the fourth day of its deliberations,

the jury met for about two hours before announcing that it had

reached a verdict.   In total, the reconstituted jury deliberated

for more than sixteen hours before arriving at a verdict.     The

jury convicted defendant of all charges pending against him.

    More than three months after the verdict, in an untimely

motion for a new trial, defendant objected for the first time to

the substitution of the juror.   Rule 3:20-1; Rule 3:20-2.

Defense counsel conceded that the trial court and counsel had

                                 8
done an “excellent job” of crafting a solution following the

juror’s illness.   He also acknowledged that the reconstituted

jury was “particularly good,” as it was observed discarding

papers that had been posted in the jury room during the original

jury’s pre-substitution discussions, consistent with the court’s

instruction to begin deliberations anew.   He argued, however,

that the Appellate Division opinion in State v. Banks,

 (App. Div.), certif. denied,

192 N.J. 598

 (2007),

barred the substitution of a juror in the circumstances of this

case, and compelled the trial court to declare a mistrial.     The

trial court denied the motion for a new trial, distinguishing

Banks on the ground that the juror in that case was removed for

personal bias, not due to an illness.

    The trial court merged defendant’s weapons convictions into

his murder convictions, and sentenced him to a term of life

imprisonment subject to an eighty-five percent parole

ineligibility period under the No Early Release Act, N.J.S.A.

2C:43-7.2, on each of the two first-degree murder convictions,

with the two terms to run consecutively.   It also sentenced

defendant to a five-year term of incarceration, to run

consecutively to defendant’s two terms of life imprisonment, on

the hindering apprehension charge.

    An Appellate Division panel reversed defendant’s conviction

and remanded for a new trial.   It held that the trial court’s

                                 9
“post-deadlock substitution” of a juror constituted plain error.

The panel construed the original jury’s declaration that it

could not reach a verdict to strongly suggest that some jurors

had made up their minds about the case, and were thus incapable

of starting deliberations anew.     The Appellate Division panel

expressed doubt that the alternate juror could fully participate

in the deliberations of the reconstituted jury given the

original jury’s progress to the point of declaring a deadlock.

     The State filed a petition for certification, and the

Appellate Division stayed its judgment pending the determination

of the State’s petition.   We granted certification.

214 N.J. 118

 (2013).

                                  II.

     The State challenges the Appellate Division’s conclusion

that the trial court committed plain error.    It contends that

the trial judge properly substituted an alternate juror for the

juror whose illness prevented her continued involvement in the

case.   It argues that there is no per se rule setting a point in

time, during the deliberations of an original jury, after which

a trial court may not substitute an alternate juror for a

departing juror and then direct the reconstituted jury to begin

its deliberations anew.    The State contends that in this case,

the original jury deliberated for a reasonable amount of time in

light of the length and complexity of the trial.     Further, it

                                  10
argues that the reconstituted jury’s protracted discussions

following the substitution of an alternate for an ill juror

confirm that it properly conducted new deliberations leading to

the verdict.

    Relying on the Appellate Division’s decision in

Banks, supra,

, defendant argues that the Appellate

Division properly found plain error in the trial court’s

substitution of an alternate for the ill juror in this case, and

that no juror substitution should take place following a

declaration of an impasse and an instruction to the jury to

resume deliberations.   Defendant urges the Court to rule that a

trial court should rarely substitute a juror for any reason

after a case goes to the jury.    He maintains that the longer the

original jury has discussed the case, the less likely it is that

a reconstituted jury will be in a position to commence fair and

open-minded deliberations.   Defendant requests that the Court

affirm the Appellate Division’s judgment.

                                 III.

    Since defendant failed to object to the trial court’s

decision to substitute an alternate for an ill juror, we review

the trial court’s decision under the standard of plain error.

In the interests of justice, an appellate court may “notice

plain error not brought to the attention of the trial or

appellate court.”   R. 2:10-2.   Plain error is “[a]ny error or

                                  11
omission [that] . . . is of such a nature as to have been

clearly capable of producing an unjust result.”      R. 2:10-2.

       In this case, we measure against the plain error standard

the trial court’s sequential responses to two developments in

the course of jury deliberations: (1) the court’s decision to

give an instruction pursuant to

82 N.J. at 404

-

06, rather than declaring a mistrial, in the wake of the jury’s

announcement of a deadlock; and (2) its substitution of an

alternate juror for a juror who became ill, followed by an

instruction to the reconstituted jury to deliberate anew.      We

consider these issues in turn.

                                 A.

       In Czachor, this Court provided guidance to trial courts

confronted with a jury’s declaration that its deliberations have

progressed to an impasse.

Ibid.

    The Court found plain error in

a trial court’s repeated charge to a deadlocked jury in

accordance with Allen v. United States,

164 U.S. 492

17 S. Ct. 154

41 L. Ed. 528

 (1896), which it had previously upheld in

State v. Bland Williams,

39 N.J. 471, 484-85

, cert. denied,

374 U.S. 855

83 S. Ct. 1924

10 L. Ed. 2d 1075

 (1963).      Id. at 402,

404.    The Allen charge directed jurors to “‘listen, with a

disposition to be convinced, to each other’s arguments,’” and

admonished a dissenting juror to “‘consider whether his doubt

was a reasonable one . . . [and] whether [the juror] might not

                                 12
reasonably doubt the correctness of a judgment which was not

concurred in by the majority.’”     Id. at 395-96 (alternations in

original) (quoting

).     This Court considered the Allen charge

to have “coercive effects upon jury deliberations,” and

disapproved both its application and the New Jersey Model

Criminal Jury Charge on this issue then in use in state court

criminal trials.     Id. at 394, 404-05.   In its stead, this Court

adopted the model charge suggested by the American Bar

Association (ABA).     Id. at 405-06 (citing ABA Project on Minimum

Standards for Criminal Justice, Standards Relating to Trial by

Jury, § 5.4, at 145-46 (Approved Draft 1968)).1

     Accordingly, New Jersey’s Model Criminal Jury Charges now

include the Czachor charge, to be given to a jury that has

announced a deadlock.     That charge admonishes jurors to

“deliberate with a view to reaching an agreement,” to

independently decide the case “after an impartial consideration

of the evidence with fellow jurors” and to re-examine and change

individual views if they are erroneous; it also counsels them to

avoid surrendering an honest conviction simply to conform to

other jurors’ opinions or to render a verdict.     Model Jury


1
  The current ABA standard is virtually identical to the one
found in the 1968 Approved Draft. See ABA Standards for
Criminal Justice, Discovery and Trial by Jury § 5.4 (3d ed.
1996).
                                  13
Charge (Criminal), “Judge’s Instructions on Further Jury

Deliberations” (Jan. 14, 2013).2

     The trial court’s determination as to whether a Czachor

charge is warranted requires a careful analysis of the

circumstances.   When a jury communicates a deadlock, trial

courts “should be guided in the exercise of sound discretion by

such factors as the length and complexity of trial and the

quality and duration of the jury’s deliberations.”

82 N.J. at 407

.   Consistent with the principle that a

jury verdict must not be the product of coercion, appellate

review of a trial court’s supplemental instruction is “guided by

a concern for the weighty role that the judge plays in the

dynamics of the courtroom.”   State v. Figueroa,

190 N.J. 219, 238

 (2007) (citing State v. Tyler,

176 N.J. 171, 181

 (2003)).

The trial judge’s discretion must be exercised in a manner that

ensures “‘a jury verdict free from untoward interference from

any source, including the court.’”   State v. Shomo,

129 N.J. 248, 257

 (1992) (quoting State v. Collier,

90 N.J. 117, 122

(1982)); see also State v. Corsaro,

107 N.J. 339, 346

 (1987)

(cautioning that “the deliberative process . . . must be

2
  In a January 2013 reorganization of the Model Criminal Jury
Charges, the Czachor charge was “removed from the Criminal Final
Charge and made into a separate Non 2C charge.” Notice to the
Bar, Updates to Model Criminal Jury Charges,

211 N.J.L.J. 319

 (Feb. 4, 2013). However, the language of the instruction to
be given to the jury is unaltered since the trial at issue in
this case.
                                14
insulated from influences that could warp or undermine the

jury’s deliberations and its ultimate determination”).     When the

“‘difference of opinion between members of the jury is clearly

intractable,’ . . . then the jury is deadlocked and a mistrial

should be declared.”

Figueroa, supra,

190 N.J. at 237

 (quoting

State v. Valenzuela,

136 N.J. 458, 469

 (1994)).3

     Confronted by the jury’s statement that it had been unable

to reach a unanimous verdict on any count, and responding to its

request for direction in light of that development, the trial

court properly applied the principles articulated by this Court

in Czachor.   The jury in this case did not signal an intractable

divide that would warrant a declaration of mistrial.     Instead,

it communicated that its effort to reach consensus on the issues

had fallen short.   The trial court properly refrained from any

inquiry that could have compromised the confidentiality of the

jury’s deliberations, and instructed the jury to resume

deliberations in accordance with the approved Czachor charge.

As both parties agree, the trial court properly exercised its


3
  To that end, a footnote to the Model Criminal Jury Charge
instructs trial judges, “[w]hen you feel a reasonable period of
time has gone by subsequent to the delivery of your charge, be
aware of N.J.S.A. 2C:1-9d(2).” A sentence added to the footnote
in 2013 informs the trial judge, but not the jury, that
“[m]istrial for a jury unable to reach a verdict will not
prevent retrial.” Model Jury Charge (Criminal), “Judge’s
Instructions on Further Jury Deliberations” (Jan. 14, 2013);
Notice to the Bar, Updates to Model Criminal Jury Charges,

211 N.J.L.J. 319

 (Feb. 4, 2013).
                                15
discretion in response to the jury’s communication of an impasse

by providing a Czachor charge and directing the jury to resume

deliberations.

                                  B.

    Shortly after the original jury reconvened, a juror’s

illness precluded her from continued participation in this case,

posing a second challenge to the trial court.      The trial court’s

decision to substitute an alternate juror for the ill juror gave

rise to the issue at the center of this appeal.

    Rule 1:8-2(d)(1) sets forth the procedure for the

substitution of an alternate juror for a juror who “dies or is

discharged by the court because of illness or other inability to

continue.”     If the trial court elects to replace an excused

juror, rather than to declare a mistrial, the court directs the

clerk to draw the name of the alternate who will deliberate.        R.

1:8-2(d)(1).     It “instruct[s] the jury to recommence

deliberations,” and gives any other “supplemental instructions

as may be appropriate.”     R. 1:8-2(d)(1).    The newly composed

jury then begins its deliberations.

    Rule 1:8-2(d)(1) “delicately balances two important goals:

judicial economy and the right to a fair jury trial.”       State v.

Jenkins,

182 N.J. 112, 124

 (2004) (citing State v. Phillips,

322 N.J. Super. 429, 436

 (App. Div. 1999)).       As this Court has

observed,

                                  16
         [d]eclaring a    mistrial imposes enormous
         costs on our judicial system, from the
         expenditure of precious resources in a
         retrial to the continued disruption in the
         lives of witnesses and parties seeking
         closure.   Any court that has presided over
         days or weeks of testimony must experience a
         sense of futility at the prospect of
         aborting a trial in the jury deliberation
         stage.

         [Id. at 124.]

    The juror substitution procedure set forth in Rule 1:8-

2(d)(1) has been held not to “offend our constitutional guaranty

of trial by jury.”   State v. Miller,

76 N.J. 392, 406

 (1978);

see also State v. Joel Williams,

171 N.J. 151, 162

 (2002)

(stating that substitution of juror in course of deliberations

“does not in and of itself offend a defendant’s constitutional

guarantee of a trial by jury”).    Such a substitution, however,

contravenes constitutional norms if it impairs the mutuality of

deliberations -- the “joint or collective exchange of views

among individual jurors.”   Joel Williams, supra,

171 N.J. at 163

; see also State v. Hightower,

146 N.J. 239, 253

 (1996).      The

trial court is charged with maintaining “an environment that

fosters and preserves that exchange until the jury reaches a

final determination.”    Joel Williams, supra,

171 N.J. at 163

(citing

107 N.J. at 349

).    The court must be

prepared to declare a mistrial if a substitution would imperil

the integrity of the jury’s process.

Hightower, supra,

146 N.J. 17

at 253-54.   The trial judge’s task is complicated by the need to

diligently protect the confidentiality of jury communications as

he or she inquires about the status of the juror in question.

In short, the trial court must appraise the impact of a juror

substitution on the jury process, without tainting that process

with intrusive questions.   It must conduct any inquiry with

respect to the juror in question, or the jury as a whole, with

caution and restraint.

    Given the competing interests at stake, this Court has

directed trial courts to focus on two related issues.   First,

the trial court must determine the cause of the juror’s concern

and assess the impact of the juror’s departure on the

deliberative process.    Second, in light of the timing of the

juror’s dismissal and other relevant considerations, the trial

court must ascertain whether a reconstituted jury will be in a

position to conduct open-minded and fair deliberations.

    In evaluating the cause of a juror’s departure, our courts

distinguish between reasons that are personal to the juror,

which may permit a substitution under Rule 1:8-2(d)(1), and

issues derived from “the juror’s interaction with the other

jurors or with the case itself,” which may not.   Joel Williams,

supra,

171 N.J. at 163

 (citing

Valenzuela, supra,

136 N.J. at 468

).   Consistent with the language of Rule 1:8-2(d)(1), and in

the absence of indicia that a reconstituted jury cannot engage

                                 18
in meaningful deliberations, our courts have consistently upheld

the substitution of an alternate for a juror excused for

personal reasons unrelated to the case.   A physical illness is

recognized in the text of Rule 1:8-2(d)(1) to constitute a basis

for removal and replacement of a juror.   See R. 1:8-2(d)(1);

157 N.J. Super. 231, 235-36, 240

182 N.J. at 130

 (observing that “[a] juror

suffering from a purely personal problem, like a physical

illness, could be removed and replaced by an alternate without

fear that the ultimate verdict’s validity has been

compromised”).

    This Court has also considered a juror’s psychological

condition as a reason that he or she cannot continue to serve.

The “inability to continue” language of Rule 1:8-2(d)(1) “has

been invoked to remove a juror under circumstances that reveal

the juror’s emotional condition renders him or her unable to

render a fair verdict.”   Joel Williams, supra,

171 N.J. at 164

(citing

Hightower, supra,

146 N.J. at 255

); see also

Miller, supra,

76 N.J. at 406-07

 (holding that trial court properly

substituted an alternate for juror who “stated that in his then

nervous and emotional condition, he did not think he could

render a fair verdict”); State v. Trent,

 (App. Div. 1978), rev’d on other grounds,

79 N.J. 251

 (1979) (authorizing replacement of juror who cited her

“nervous” and “emotional” condition, manifested in headaches and

                                19
nausea, because defendant reminded her of her son).    This Court

has also held that the “inability to continue” standard of Rule

1:8-2(d)(1) authorizes the substitution of an alternate for a

juror who seeks to be excused because of the financial hardship

imposed by continued service.    Joel Williams, supra,

171 N.J. at 167

.

       These personal concerns prompting a juror’s departure in

the midst of deliberations -- a physical illness, an emotional

condition or the financial burden of service -- do not originate

in the interactions between the excused juror and the remaining

jurors.    Accordingly, they do not preclude the substitution of

an alternate for the excused juror.    See R. 1:8-2(d)(1).

       In contrast, this Court’s decision in

Valenzuela, supra,

involved the dismissal of a juror whose relationships with other

jurors deteriorated in the course of deliberations.

136 N.J. at 462-66

.   There, the trial court received a note stating that a

juror did not want to continue her service.

Id. at 462

.   The

juror represented that the other jurors were “ganging up” on

her, that they were discounting her opinions, and that they

considered her an obstacle to a verdict.

Id. at 462-65

.   This

Court held that because the juror’s inability to complete her

service “related not only to personal circumstances but also to

factors arising from the juror’s interactions with the other



                                 20
jurors,” her discharge from further service was an abuse of

discretion.

Id. at 473

.

    In addition to determining whether issues personal to the

juror or troubled relationships in the jury room have prompted

the juror’s departure, the trial court should consider whether a

reconstituted jury will be in a position to meaningfully

evaluate and discuss the case.   “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.”   Joel Williams, supra,

171 N.J. at 169

.

Instead, the court should consider such factors as the timing of

the juror’s departure, his or her explanation of the problem

prompting the inquiry, and any communications from the jury that

may indicate whether deliberations have progressed to the point

at which a reconstituted and properly charged jury will be

unable to conduct open and mutual deliberations.

    This Court has considered these factors in several

settings.   In Joel Williams, the Court rejected the Appellate

Division panel’s conclusion that the juror’s departure occurred

at a “critical time,” and that the juror’s comment that he “gave

it [his] best shot” implicated the deliberative process, barring

substitution.

Id. at 168-69

 (alteration in original).     There,

the juror’s request to be excused for financial reasons followed

approximately three hours of deliberations.

Id. at 159

.

                                 21
Because the jury asked for “a readback of critical

identification testimony” immediately before the juror was

excused, and deliberated for several hours after the

substitution of a new juror before reaching a verdict, the Court

surmised that “[t]he jury could not have reached a determination

of guilt or innocence” in advance of the substitution.

Id. at 169

.   The Court did not consider the deliberations “to have

progressed to such a point that the new juror would not have

[had] a realistic opportunity to share in the deliberative

process.”

Id. at 170

.

       This Court’s opinion in

182 N.J. 112

, arose

in a different context.    There, a juror claimed to identify with

the defendant because of his race, and “unequivocally

expresse[d] her unwillingness or inability to put aside bias and

passion and follow the law.”

Id. at 119, 123

.   The Court

therefore held that the trial court could have properly excused

the juror due to her bias.

Id. at 130

.   It found, however, that

despite a good faith and earnest effort to address a difficult

situation, the trial court had inadvertently elicited from the

juror information about the positions of other jurors regarding

the merits of the case.

Id. at 134

.   Cautioning judges to avoid

such disclosures by warning jurors not to reveal the substance

of a jury’s confidential discussions, the Court held that it was

error for the trial judge to have permitted the reconstituted

                                  22
jury to deliberate in these circumstances, and remanded for a

new trial.

Id. at 134-35, 137

.

    The Court reached a similar conclusion in

107 N.J. 339

.   In that case, the jury reached a partial verdict

before the trial court replaced a juror who had briefly vanished

and returned to court, apparently intoxicated.

Id. at 341-42

.

In the wake of a partial verdict by the original jury, the Court

held that it was plain error to substitute an alternate for a

juror at that late stage:

         [W]here    the   deliberative  process   has
         progressed for such a length of time or to
         such a degree that it is strongly inferable
         that the jury has made actual fact-findings
         or   reached   determinations of   guilt  or
         innocence, the new juror is likely to be
         confronted with closed or closing minds. In
         such a situation, it is unlikely that the
         new juror will have a fair opportunity to
         express his or her views and to persuade
         others.    Similarly, the new juror may not
         have a realistic opportunity to understand
         and share completely in the deliberations
         that   brought   the   jurors to  particular
         determinations, and may be forced to accept
         findings of fact upon which he or she has
         not fully deliberated.

         [Id. at 352.]

    Thus, when the circumstances suggest a strong inference

that the jury has affirmatively reached a determination on one

or more factual or legal issues, the trial court should not

substitute an alternate for an excused juror.    See

id. at 354

.



                                   23
    We derive from these cases several principles to guide a

trial court’s determination as to whether a reconstituted jury

will meaningfully deliberate.   First, the trial judge should

conduct any inquiry of the juror seeking to be excused with

caution, and should direct the juror not to reveal confidential

jury communications.    See

182 N.J. at 134-35

.

Second, the trial court may consider the duration of the jury’s

deliberations prior to the departure of the juror.   Without

applying an inflexible rule that would preclude substitution

after a specific amount of time has elapsed, the trial court

should determine whether the jury appears to have progressed to

a stage at which issues have been decided and deliberations

cannot commence anew.   See Joel Williams, supra,

171 N.J. at 169-70

.   Third, if a partial verdict has been rendered, or the

circumstances otherwise suggest that jurors have decided one or

more issues in the case, the trial court should not authorize a

juror substitution, but should declare a mistrial.   See

.

    Finally, if the trial court permits the substitution of an

alternate juror for an excused juror, it must instruct the newly

composed jury before its deliberations.   The trial court should

charge the jury that the excused juror’s departure was prompted

by personal issues, rather than by his or her view of the case

or relationships with other jurors, that the reconstituted jury

                                 24
should not speculate on the reasons for the juror’s departure,

and that the jury should begin deliberations anew by setting

aside their previous discussions so that the reconstituted jury

may conduct full and complete deliberations.    The Model Criminal

Jury Charge, revised following this Court’s decision in Jenkins,

accurately and concisely conveys those instructions.     See Model

Jury Charge (Criminal), “Judge’s Instructions When Alternate

Juror Empaneled After Deliberations Have Begun” (Jan. 14, 2013).4

     Applying these principles to this case, we hold that the

trial court’s decision to substitute an alternate for the ill

juror after the deadlock had been announced did not constitute

plain error.   Nothing in the original jury’s communications with

the trial court suggested that any juror had reached a

determination on a factual or legal issue.     There was no

indication that the jury was unable to engage in open-minded

discussions after the substitution.   Indeed, the trial court

charged the jury to conduct fair and mutual deliberations, and


4
  In

 the Court did not find error in the trial
court’s instruction to the reconstituted jury which was
“consistent with the Model Criminal Charge.”

182 N.J. at 135

.
The Court recommended, however, that the Committee on Model
Criminal Charges amend the charge to be in conformance with a
correspondent instruction in the Model Civil Charge.

Id. at 136-37

. In 2005, the post-substitution charge to a jury set
forth in the Model Criminal Jury Charges was revised
accordingly, and following a 2013 reorganization of the Model
Charges, is it now set forth in a separate charge. Model Jury
Charge (Criminal), “Judge’s Instructions When Alternate Juror
Empaneled After Deliberations Have Begun” (Jan. 14, 2013).
                                25
we presume that its instructions were followed.     See State v.

Winder,

200 N.J. 231, 256

 (2009).

    Although the original jury deliberated for a significant

period and requested a readback of evidence prior to the

substitution, it did not announce or imply that it had rendered

a partial verdict or that it had otherwise “reached a

determination of guilt or innocence.”     Joel Williams, supra,

171 N.J. at 169

.   In contrast to the settings of Corsaro and

Jenkins, there was no suggestion in the trial court’s cautious

inquiry of the excused juror that the juror’s inability to

continue derived from her view of the case or her discussions

with her colleagues.     There was no evidence that the juror in

question was a holdout juror, that she manifested bias, that she

had confronted hostile or intractable colleagues, or that

disputes had arisen in the jury room.     Instead, the

precipitating event was clearly the juror’s illness, which was

sufficiently debilitating to preclude her further service.

    Moreover, in the wake of the trial court’s proper

instruction to the jury to begin deliberations anew, the newly

constituted jury undertook protracted deliberations.      The jury

met for more than sixteen hours over four days.     It sought and

received a readback of testimony distinct from that requested by

the original jury.     It rendered a verdict only after



                                  26
deliberating for a period sufficient to permit an open and

thorough discussion of the issues.

    In reversing the trial court’s judgment, the Appellate

Division panel relied upon the holding in

Banks, supra,

395 N.J. Super. at 218

, another Appellate Division decision.       In Banks,

after the jury declared an impasse and the trial court

instructed it pursuant to Czachor to continue deliberating, the

jury asked the trial court how it should address a juror who

“may hold personal bias towards the police or victims due to

prior circumstances.”

Id. at 211, 218

.   After interviewing the

jurors individually, the trial court “concluded that the problem

juror’s inability to function was personal and unrelated to his

interaction with the other members of the jury,” and thus

dismissed the juror.

Id. at 214

.     The defendant then made a

motion for a mistrial, which the trial court denied.

Ibid.

    The Appellate Division in Banks reversed and remanded for a

new trial.

Id. at 220

.    It confirmed the propriety of the

Czachor charge given by the trial court, but concluded that the

jury’s initial declaration of an impasse itself “indicates that

deliberations have progressed to a point where the individual

jurors have made determinations about the evidence and facts,”

thereby compelling a mistrial.

Id. at 211, 218

.    The panel

cited Corsaro and Jenkins as authority for its holding on this

issue.

Id. at 218

.

                                   27
     The Appellate Division panel in Banks correctly applied

182 N.J. at 130-31

, to hold that the excused

juror’s manifest bias warranted a mistrial.

Id. at 216

.     It

incorrectly concluded, however, that a trial court may never

substitute an alternate for an excused juror after an initial

declaration of a deadlock and a Czachor charge.

Id. at 219

.      In

authorizing continued deliberations following a deadlock and an

instruction, this Court declined to hold in

 that

an initial impasse signals the end of meaningful deliberations.

82 N.J. at 404-06

 (directing trial courts, in appropriate

circumstances, to charge deadlocked jury to continue

deliberations).     To the contrary, the Czachor charge instructs

jurors to consider the viewpoints of other jurors with an open

mind.   See Model Jury Charge (Criminal), “Judge’s Instructions

on Further Jury Deliberations” (Jan. 14, 2013).     In short,

Czachor contemplates that a previously deadlocked jury can

conduct fair and effective deliberations notwithstanding an

earlier impasse.5    A juror substitution, necessitated by illness,


5
  We respectfully disagree with the view of our dissenting
colleague that because the jury had previously reached an
impasse, its deliberations had proceeded too far to permit the
trial court to substitute an alternate. Post at __ (slip op. at
2). This Court’s opinion in

395 N.J. Super. at 218-20

 is premised upon
the principle that a properly instructed jury can and will
meaningfully deliberate, notwithstanding a prior declaration of
an impasse.

82 N.J. at 404-06

. Following the trial court’s
administration of the Czachor charge and resumption of
deliberations, which our dissenting colleague agrees was an
                                  28
that conforms with Rule 1:8-2(d)(1) does not alter that

conclusion.6

     Accordingly, we overrule the Appellate Division panel’s

decision in

Banks, supra,

 to the extent that it generally barred

trial courts from substituting a juror and directing new

deliberations, by virtue of the fact that the original jury had

reached an initial impasse and was charged in accordance with

Czachor.

.

     We hold that in this case, the trial court properly

responded to the original jury’s statement that it was at an

impasse and to the subsequent illness of one juror.   In each

situation, the trial court determined the relevant facts without

compromising the integrity of the jury’s deliberations, and

instructed the jury in accordance with this Court’s decisions.

In challenging circumstances, the court ensured that defendant


appropriate measure, there was no indication that the jury was
unable to conduct open-minded and fair deliberations, either
before or after the substitution of an alternate for the ill
juror.
6
  The cases upon which the Appellate Division in Banks relied,
Corsaro and Jenkins, involved jury deliberations that had
clearly progressed to the point at which jurors had reached
final determinations on factual and legal issues, thus
precluding meaningful deliberations by a reconstituted jury.

182 N.J. at 132-33

 (pre-substitution jury was
“prepared to convict defendant at the moment of substitution”);

107 N.J. at 341-42

 (pre-substitution jury
reached partial verdict on three of five counts). Neither
Corsaro nor Jenkins stands for the proposition that once an
impasse has been declared and a Czachor charge given, an
alternate can never be substituted for a juror excused for
personal reasons unrelated to the case.
                                29
received a fair trial.   It committed no plain error warranting a

new trial.

                                IV.

    Therefore, the judgment of the Appellate Division is

reversed, and defendant’s convictions are reinstated.

     CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA and FERNANDEZ-
VINA; and JUDGE RODRÍGUEZ (temporarily assigned) join in JUSTICE
PATTERSON’s opinion. JUDGE CUFF (temporarily assigned) filed a
separate, dissenting opinion. JUSTICE ALBIN did not
participate.




                                30
                                          SUPREME COURT OF NEW JERSEY
                                            A-67 September Term 2012
                                                     072042

STATE OF NEW JERSEY,

    Plaintiff-Appellant,

          v.

MICHAEL ROSS II,

    Defendant-Respondent.


    JUDGE CUFF (temporarily assigned), dissenting.

    The majority holds that the trial judge properly issued a

jury instruction consistent with State v. Czachor,

82 N.J. 392

(1980), when the jury reported it was deadlocked, and properly

substituted an alternate juror following the Czachor instruction

after a deliberating juror fell ill and was unable to continue.

Ante at        (slip op. at 2).   In doing so, the majority also

overrules State v. Banks,

 (App. Div.),

certif. denied,

192 N.J. 598

 (2007), “to the extent that it held

that it generally barred trial courts from substituting a juror

and directing new deliberations” following declaration of

impasse and delivery of a Czachor charge.      Ante at ___ (slip op.

at 29).   I readily join the majority opinion to the extent that

it holds that the trial court properly issued a Czachor charge

when informed by the jury that it had reached an impasse in its

deliberations.     I would also join the majority opinion if the

                                    1
ill juror had been substituted before the jury declared an

impasse.   I respectfully dissent from the majority holding that

the trial court could discharge the ill, deliberating juror,

substitute an alternate juror, and instruct the jury to continue

its deliberations anew following declaration of impasse and

issuance of a Czachor instruction.

    Our Rules provide that a juror may be replaced once a case

has been submitted to the jury only in the event the juror dies

or because of illness or other inability to continue.    R. 1:8-

2(d)(1).   However, the inquiry does not end there.   We must then

ask a second question:   whether “the jury’s deliberations ha[ve]

proceeded so far towards completion that a reconstituted jury

would not [be] capable of considering [the] defendant’s guilt or

innocence anew.”    State v. Jenkins,

182 N.J. 112, 116

 (2004).

If the answer to that inquiry is in the affirmative, a mistrial

must be declared.   In my view, the jury had proceeded too far in

this case to permit the trial court to have a reasonable

expectation at the time of substitution that the newly seated

juror could be a full and equal participant in the

deliberations.   I, therefore, respectfully dissent and would

affirm the Appellate Division judgment.

                                 I.

    After deliberating over the course of five days, the jury

sent a note to the court, stating, “The jury was unable to reach

                                  2
a unanimous verdict on any count.    What is your next

instruction?”   The court, in agreement with counsel, instructed

the jury to continue deliberating, delivering the standard

charge outlined by this Court in

82 N.J. at 405

-

07.   Following a lunch break and less than two hours of

deliberation, the jury advised the trial court through another

note that a juror had become ill and did not expect to be

present the following morning.   The court dismissed the jury for

the remainder of the day and determined that the ill juror, who

complained of a “terrible headache” and “nausea,” would be

replaced with one of the alternates if she was unable to attend

the next day.   The following morning, the trial judge telephoned

the juror in counsel’s presence, and the juror confirmed she was

too sick to report.   The court asked if either counsel had

additional questions; neither did.    The trial court determined

that the ill juror could be replaced, and stated:

          [T]here’s nothing to say that this jury has
          made any actual fact findings or reached any
          determinations of guilt or innocence. And
          there’s . . . nothing that would indicate
          that a new juror will not play a meaningful
          role in deliberations. There’s no partial
          verdict, nothing like that. No lengthy
          colloquy with any juror.

The trial court noted that after receiving the Czachor charge

the jurors deliberated for “less than two hours,” before sending

the note concerning the juror’s illness.    The court further


                                 3
opined, “I believe there’s no problem substituting one of the

alternates.”   Neither counsel objected, and the reconstituted

jury deliberated over the course of the following four days

before announcing its verdict.

                                 II.

    This Court has stressed that the substitution of

deliberating jurors should be rare and is to be discouraged.

In State v. Hightower, we noted that

         any conduct that could upset the process of
         jury deliberations, even judicial conduct
         such as juror substitution, must be
         carefully scrutinized.

              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.

         [

146 N.J. 239, 253-54

 (1996).]

    In State v. Corsaro, the Court held that a juror should not

have been substituted after the jury returned a partial verdict,

and noted the concern that

         if the jury deliberates for an extended
         period of time, it 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,” and may indeed be
         pressured by the amount of time the jury has
         deliberated and by the extent of their


                                  4
         progress to conform to their findings and
         verdict.

         [

107 N.J. 339, 351

 (1987) (internal
         citations omitted).]

In Corsaro, the Court quoted at length the Supreme Court of

California in People v. Collins,

552 P.2d 742, 746

 (Cal. 1976),

cert. denied,

429 U.S. 1077

97 S. Ct. 820

50 L. Ed. 2d 796

(1977), which highlighted the threat to the delicate balance of

deliberations posed by juror substitution:

         “The requirement that 12 person[s] reach a
         unanimous verdict is not met unless those 12
         reach their consensus through deliberations
         which are the common experience of all of
         them. It is not enough that 12 jurors reach
         a unanimous verdict if 1 juror has not had
         the benefit of the deliberations of the
         other 11.”

         [Corsaro, supra,

107 N.J. at 349

-50 (quoting

Collins, supra,

552 P.2d at 746

).]

    Similarly, in

 the Court reiterated that

principles of judicial economy embodied in Rule 1:8-2(d)(1)

sometimes must yield to the simple fact that deliberations had

proceeded too long to expect that a reconstituted jury could

commence its deliberations anew.

182 N.J. at 131-32

.

                              III.

    The issue of whether a reconstituted jury is capable of

functioning in the mutual and collective manner required for a

fair trial involves numerous issues of juror dynamics.       There

should be a legitimate concern that a newly introduced juror may

                                   5
not be able to fully participate, or participate in a fully

informed manner, in the renewed deliberations.   A new juror may

feel pressure to conform to the views of jurors who have been

considering the evidence for many hours or days.   The original

members of the jury may not be capable of starting their

deliberations anew.   Indeed, Justice Handler’s remarks in

Czachor about the inherently coercive effect of that instruction

apply with equal force here.   He stated, “[t]here is rather

equal cause to believe that a mind once bent in a particular

direction is not easily straightened.”

82 N.J. at 401

.   These concerns implicate the fairness of the

deliberative process.   When the substitution follows a

declaration of impasse, the introduction of a new member occurs

at a time in the deliberations when the very declaration of an

impasse communicates that at least one member of the jury is at

odds with the others.   Such a circumstance adds to the concern

that the integrity and even-handedness of the deliberative

process will be compromised.

    Judicial economy is a commendable goal.   A trial court

should never blithely declare a mistrial.   Judicial economy

concerns mount as the testimony consumes hours, days, or even

weeks before the jury can commence its deliberations.     Those

concerns only increase as jury deliberations proceed over many

hours and days.   Those concerns, however, can never be the sole

                                 6
driver of the decision whether a juror may be substituted for

another after the jury has declared it is deadlocked and the

trial court has delivered an appropriate charge to continue

deliberations.

      Whether a reconstituted jury is able to begin its

deliberations anew should be guided by objective principles.

Here, the majority salvages this conviction by focusing on

information gleaned from the record about what occurred before

the jury resumed its deliberations and during the course of its

deliberations.   It also finds solace in the amount of time the

reconstituted jury spent on its deliberations.   To be sure, the

record here strongly suggests that the reconstituted jury began

its deliberations anew.   The record also demonstrates that the

renewed deliberations progressed over several days and the jury

requested read-back of testimony different from the originally

constituted jury.   For me, however, the correct inquiry is not

whether the reconstituted jury conscientiously discharged its

duty to begin anew, but rather whether it was capable of doing

so.

      By focusing on the result, the majority fails to offer

practical guidance for trial judges, prosecutors, and defense

attorneys.   Reliance on extrinsic evidence, such as post-

substitution acts of the jury and the supposed course of

deliberations, provides no guidance how trial courts and counsel

                                 7
should confront a similar issue in another case.      Such reliance

also ventures into the deliberative process, a foray this Court

has always condemned.

.    Furthermore, the actions a reconstituted

jury will take, such as asking for new pads, taking posters off

the wall in the jury room, or the length of time the newly

constituted jury will deliberate, whether thirteen hours over

four days, as here, or as little as one hour, as in Banks, are

unknowable at the time the decision must be made.      Adding to the

uncertainty, this Court has reversed convictions when the newly

constituted jury deliberates for a matter of minutes.

182 N.J. at 116

.

    The majority insists that they are simply following the

established approach that avoids adopting bright-line rules.

Ante at ___ (slip op. at 21).    However, case law demonstrates

that bright-line rules do, in fact, exist.      In