Date: 08-18-2015

Case Style: State of New Jersey v. Humfrey A. Musa

Case Number: A-78-13

Judge: Barry T. Albin

Court: SUPREME COURT OF NEW JERSEY

Plaintiff's Attorney: Stephen A. Pogany

Defendant's Attorney: Marcia H. Blum

Description: In this criminal case, at the conclusion of the first day
of jury deliberations, the jury sent a note to the court asking:
“Can a particular juror be excused from the case?” The court
responded to the question appropriately, generally explaining
2
that a juror could not be excused for reasons related to
differences with other jurors, but could for personal reasons,
such as illness. The court gave the jurors the opportunity to
raise the issue the next day at sidebar. No one did so.
The following day, Juror Number 2 did not appear for
service. Over the objection of defense counsel, the trial court
impanelled an alternate juror. The court declined defense
counsel’s request that the jurors be questioned about whether
Juror Number 2 was the subject of the previous day’s note.
After the jury returned a guilty verdict, defense counsel moved
for a mistrial based on the juror substitution. That motion was
denied.
The Appellate Division reversed the conviction, finding
that the trial court erred in making the substitution under Rule
1:8-2(d)(1) before exploring “whether the juror’s failure to
return to court was for reasons personal to the juror or due to
the juror’s interaction with the jury.”
We do not agree with the Appellate Division that the trial
court’s decision to place an alternate juror on the panel,
without inquiring of the jury about the reasons for Juror Number
2’s absence, was a fatal error requiring that the jury’s verdict
be overturned. The court was well within its discretion to make
the juror substitution under Rule 1:8-2(d)(1) -- even without an
inquiry of the jury. That does not mean it would have been
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unreasonable for the trial court to make some limited inquiry,
provided it would not have exposed any information about the
deliberative process.
Here, the court did not remove the juror from the panel.
Instead, the juror either did not return intentionally or faced
some disabling circumstance that prevented her from returning.
The trial court was not required to declare a mistrial because
of Juror Number 2’s non-appearance.
A juror’s unexplained absence from the courthouse on
deliberation day cannot, alone, sabotage a trial. Moreover, it
is difficult to imagine that an inquiry of the jury would have
made a difference. The court would not have been compelled to
scuttle the trial even had it known that the juror was unable to
participate for personal reasons or was unwilling to come to the
courthouse to participate. Under those circumstances, a juror
cannot control the fate of a trial. Importantly, we do not know
why Juror Number 2 did not return for the second day of
deliberations. Unfounded speculation cannot be the basis for
overthrowing a jury verdict.
We therefore reverse the judgment of the Appellate Division
and remand to that court for consideration of an unresolved
issue: whether the trial court’s failure to give an
identification charge denied defendant a fair trial.
I.
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A.
Defendant Humfrey A. Musa was indicted for second-degree
robbery, N.J.S.A. 2C:15-1. A jury trial was conducted on
February 2, 3, and 4, 2011. The testimony of Booney Davidson,
the victim, and two police officers detailed the following
events.
On March 25, 2010, at approximately 5:25 p.m., Davidson was
walking on a street in the City of East Orange, on his way home
from work, when he was approached by a person he later
identified as defendant. Defendant, who had been walking behind
two or three other men, said to Davidson, “pops, give me your
money.” Thinking the remark was made in jest, Davidson replied,
“you kidding[?]” Defendant then pushed Davidson against a wall
and snatched $31 from Davidson’s pants pocket. Defendant left
the scene, and Davidson continued on his way home. When
Davidson came upon a police officer, he reported the crime and
described the men. A police dispatch about the robbery
followed.
Not far from the site of the robbery, East Orange Police
Detective Robert Wright observed four men, including defendant,
generally fitting the description in the dispatch. Detective
Wright and his partner detained the four men while another
officer transported Davidson to the scene. On his arrival,
Davidson identified defendant as the robber and cleared the
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other men of having any involvement in the crime. Defendant was
then placed under arrest. From defendant’s left front pocket,
the police recovered $31 in denominations that matched those
stolen from Davidson. At headquarters, Davidson again
identified defendant, this time from an array of eight
photographs.
B.
After the State’s presentation, the defense rested without
calling any witnesses. In summation, defense counsel raised the
defense of mistaken identification, but neither side requested
an identification charge.
On the second day of trial, February 3 at 11:57 a.m., the
jury began its deliberations. At 4:18 p.m., in the presence of
counsel, the court acknowledged receipt of a note from the jury.
The top of the note read: “Still undecided. What do we do
now?” Below that message, the jury listed three questions:
“How much time are we allotted tonight? Can a particular juror
be excused from the case? And can we get an easel with a
marker?”
The court told the jurors that they would adjourn for the
evening and continue their deliberations in the morning. It
also pledged to have an easel and marker available when they
began their session. The court gave the following response to
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the question whether “a particular juror [could] be excused from
the case”:
Generally the answer is no. You have the 12, you’ve been randomly selected, 12 of you heard the case. You have to hear the case and decide the case. Now, if a Juror wishes to be excused, it has to be for a good reason, it can’t be just because you’re not getting along with all the other Jurors, that’s not how it works. But if someone has a particular issue or wishes to be heard in regard to a particular issue, you can write us a note tomorrow morning. We’ll certainly have the Juror come out separately and we’ll hear the issue and we’ll decide from there.
In open court and so forth, the general answer is no, but we also have alternates [who] are here, in case somebody becomes ill or some other issues happen[] or someone has to leave. We have alternates and that’s the reason. It has to be for a very particular reason, not just because you’re not getting along and you don’t want to be here any more.
. . . .
We’ll see you tomorrow morning at 9:30.
The next day, February 4, Juror Number 2 did not report to
the courtroom at 9:30 a.m., as required. The court had calls
made to locate the juror. The court personally called the
Hudson County Clerk’s Office, which the juror listed as her
place of employment. The court was advised that no one by the
juror’s name had a record of employment there. By 11:23 a.m.,
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nearly two hours past reporting time, the court decided to
replace Juror Number 2 with an alternate juror.
Earlier, defense counsel expressed concern that, perhaps,
the juror was involved in an accident or an emergency. Shortly
before the court’s decision to proceed without Juror Number 2,
defense counsel asked whether “it would be appropriate . . . to
send a note into the Jury to try to find out if Juror number two
was the one that they were referring in that note as the
uncooperating Juror.” The court decided against taking that
approach and, over defense counsel’s objection, proceeded with
the substitution.
The court gave the following instruction to the newly
constituted jury:
As you can see, Juror number two is missing. We tried to locate the Juror, we could not locate the Juror. The reason we have alternates is for reasons such as this particular contingency.
As you know, Juror number two is not here and was excused from the Jury, although I will issue the appropriate bench warrant to have her come and explain why she’s not here. That’s neither here nor there with regard to your consideration.
. . . . Now the alternate Juror has been selected to take Juror number two’s place. The reason that Juror number two was excused was entirely irrelevant to this case, it had nothing to do with that person’s views on the case nor her relationship with other members of the
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deliberating Jury. Please do not speculate on the reason why the Juror was excused.
After receiving instructions to begin anew its
deliberations with the alternate juror, the jury retired to the
jury room. The jury deliberated for one hour and fifty minutes
and then returned a verdict of guilty on the charge of second
degree robbery.
C.
Defendant moved for a new trial on the ground that the
court erred in substituting an alternate juror for missing Juror
Number 2. The court denied that motion and stated its reasons
for doing so. The court determined that the note submitted by
the jury -- “Still undecided. Can a particular juror be excused
from the case?” -- did not provide meaningful information from
which any firm conclusions could be drawn. The court rejected
defendant’s assumption that Juror Number 2 was deadlocking the
jury. The court observed that nothing in the record supported
the assumption that “there was a single dissenting juror,” that
“the jury had already come to an agreement, but for the presence
of that single juror,” or that “Juror Number 2 . . . was the
phantom dissenter.” The court also noted the complete absence
of any evidence that Juror Number 2 possessed a bias or some
other prejudicial disposition that tainted the deliberations.
Moreover, it emphasized that Juror Number 2 “was never dismissed
9
from service, but could not be located,” thus distinguishing
this case from prior juror-removal cases. Last, the court found
that the deliberations had not progressed so far that
substitution of an alternate was precluded.
D.
The court sentenced defendant on the robbery charge to a
six-year prison term subject to the No Early Release Act,
N.J.S.A. 2C:43-7.2, and to a three-year period of supervised
release after his release from custody. It also imposed all
requisite fines and penalties.
E.
In an unpublished decision, the Appellate Division reversed
defendant’s conviction based on the court’s failure to make any
inquiry following the jury note, which asked “whether a
‘particular juror could be excused from the case.’” The
appellate panel remanded for a new trial and directed that “the
[trial] court should charge the jury on identification since
identification is a significant issue in this case.”
The panel was satisfied that the trial court “made
appropriate inquiries . . . to determine the juror’s
whereabouts” and “did not abuse its discretion in replacing the
juror after nearly two hours had elapsed since the 9:30 a.m.
reporting time.” The panel, however, concluded that the trial
court erred in failing to explore “whether the juror’s failure
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to return to court was for reasons personal to the juror or due
to the juror’s interaction with the jury.” According to the
panel, the receipt of the juror note should have prompted two
responses from the court. First, upon receipt of the note, “the
court should have sought further clarification from the jury why
it was asking whether a particular juror could be excused.”
Second, after Juror Number 2 failed to appear the next morning,
“the court should have questioned the remaining jurors in an
effort to determine whether there was any connection between the
previous day’s question and Juror 2’s non-appearance.”
The panel concluded that the court’s failure to make those
inquiries in an attempt to learn “why the juror had not
returned” deprived the panel of the ability to carefully
scrutinize the propriety of the juror substitution, thus
requiring reversal.
We granted the State’s petition for certification. State
v. Musa, 217 N.J. 296 (2014). We also granted the motion of the
Attorney General to participate as amicus curiae.
II.
A.
The State urges that defendant’s conviction be reinstated.
The State argues that the trial court properly substituted the
alternate juror for Juror Number 2 without conducting an
intrusive inquiry of the jury. According to the State, the
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trial court appropriately responded to the jury’s question about
excusing a juror and only substituted an alternate after Juror
Number 2 failed to report for service and could not be located.
The State maintains that the Appellate Division’s approach would
have “required the trial judge to invade the jurors’
deliberative process,” revealing the “voting inclinations” of
jurors and thus compromising the sanctity of their
deliberations. It claims, moreover, that nothing in the record
suggested that “the jury’s deliberations had progressed to the
point where substitution of a juror would have been futile.” In
short, the State submits that, in applying Rule 1:8-2(d)(1), the
trial court appropriately balanced the twin goals of the right
to a fair trial and judicial economy.
B.
The Attorney General, as amicus, contends that in the
absence of an “indication of any specific jury irregularity,”
the trial court had no obligation to question jurors about
“whether Juror Two’s disappearance had anything to do with jury
deliberations.” The Attorney General expresses concern that the
questioning required by the Appellate Division could have
potentially revealed “information about the substance of the
jury’s deliberations, jeopardizing the integrity of the entire
proceeding.” The Attorney General maintains that the “trial
court took appropriate steps to locate the missing juror” and,
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when that failed, “properly replaced the juror with an alternate
juror.”
C.
Defendant claims that the trial judge failed to protect his
right to a fair and impartial jury by choosing “not to question
the jury before seating an alternate juror after one juror went
missing.” Defendant submits that the jury’s question -- “‘Can a
particular juror be excused from the case?’” -- “suggest[ed]
that something unusual and troubling [was] going on in the jury
room.” In defendant’s view, the jury question “indicate[d]
either that a particular juror want[ed] to be excused, or that
the other 11 jurors want[ed] to get rid of the twelfth, or,
possibly, both.” From that premise, defendant argues that “the
judge should have made an effort to ensure that whatever caused
the jury to ask about getting rid of a deliberating juror had
not affected its ability to reach an impartial verdict.”
Defendant complains that the “judge denied even counsel’s modest
request that, before seating an alternate, he at least try to
find out if the absent juror was the subject of the previous
day’s note.” Defendant states that the judge first had “to
determine whether the juror must be dismissed.” Defendant
claims that no reported case in this jurisdiction treats a
juror’s unexplained absence as an “inability to continue” under
Rule 1:8-2(d)(1) and therefore as a basis for juror removal.
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According to defendant, “the trial judge failed in his duty to
ensure that deliberations were not tainted by whatever had
driven the jury to ask about getting rid of a juror.” For those
reasons, defendant urges that we affirm the Appellate Division’s
reversal of his conviction.
III.
A.
Our review of a trial court’s decision to remove and
substitute a deliberating juror because of an “inability to
continue,” pursuant to Rule 1:8-2(d)(1), is deferential. We
will not reverse a conviction unless the court has abused its
discretion. State v. Williams, 171 N.J. 151, 168, 170 (2002);
State v. Valenzuela, 136 N.J. 458, 473 (1994). An appellate
court’s review of “a trial court’s denial of a mistrial motion”
is also governed by the abuse-of-discretion standard. State v.
Yough, 208 N.J. 385, 397 (2011) (stating that “grant of a
mistrial is an extraordinary remedy”).
The deference that must be accorded to trial court fact
findings in this setting must guide our analysis of whether the
Appellate Division erred in reversing defendant’s conviction.
B.
Rule 1:8-2(d)(1) provides that, after the jury begins its
deliberations, an alternate juror may not be substituted unless
“a juror dies or is discharged by the court because of illness
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or other inability to continue.”1 Rule 1:8-2(d)(1) is intended
to strike a balance between a defendant’s right to a fair trial
decided by an impartial jury and judicial economy. State v.
Jenkins, 182 N.J. 112, 124 (2004). “Declaring 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.” Ibid. Nevertheless, a juror may not be replaced if
to do so would “pose a threat to the integrity or independence
of the deliberative process.” Ibid.
Clearly, replacing an ill or deceased juror with an
alternate juror will not pose such a threat. Ibid. However,
the removal of a juror because he is disputatious and does not
share the views of other jurors would undermine the very essence
1 Rule 1:8-2(d)(1) provides:
If the alternate jurors are not discharged and if at any time after submission of the case to the jury, a juror dies or 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.
[R. 1:8-2(d)(1) (emphasis added).]
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of the free and open debate that is expected of jury
deliberations. Ibid. Although jurors are urged to attempt to
reach consensus, discord, not just assent, is a natural part of
the deliberative process. A court may not play any role in
jiggering a jury panel’s composition for the purpose of imposing
conformity.
Illness and death are neutral categories allowing for the
substitution of an alternate juror. On the other hand, removal
of a juror for “other inability to continue” is open to varying
interpretations. For that reason, “[w]e have restrictively
interpreted the phrase ‘inability to continue’ in Rule 1:8
2(d)(1) to . . . forbid[] juror substitution when a deliberating
juror’s removal is in any way related to the deliberative
process.” Ibid. “A deliberating juror may not be discharged
and replaced with an alternate unless the record ‘adequately
establishes that the juror suffers from an inability to function
that is personal and unrelated to the juror’s interaction with
the other jury members.’” Id. at 124-25 (quoting State v.
Hightower, 146 N.J. 239, 254 (1996)); see also Valenzuela,
supra, 136 N.J. at 468 (“The ‘unable to continue’ language . . .
[applies] to compelling circumstances which are exclusively
personal to the juror in question, and hence which do not and
which by their nature cannot raise the specter of either a jury
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taint or substantive interference with the ultimate course of
the deliberations.” (internal quotation marks omitted)).
Our courts have sanctioned the removal of a deliberating
juror for “inability to continue” when the juror has “expressed
refusal to abide by her sworn oath to follow the law,” Jenkins,
supra, 182 N.J. at 130, complained of financial hardship,
Williams, supra, 171 N.J. at 167, stated that his nervous and
emotional condition “affect[ed] his judgment” and ability to
render a fair verdict, State v. Miller, 76 N.J. 392, 401, 406-07
(1978), and “disregarded the court’s unambiguous admonitions”
and had a “conversation with a relative [that] patently
influenced [her],” State v. Holloway, 288 N.J. Super. 390, 404
(App. Div. 1996). In those examples, the removal is for reasons
personal to the juror and not for reasons relating to the
interchange between jurors or the deliberative process.
Substituting an alternate juror for a deliberating juror
who fails to report for service is permissible for the same
reason that substitution is allowed under Rule 1:8-2(d)(1) for
illness and death. In all three scenarios, there is no
potential for the rigging of a jury. When a deliberating juror
fails to report for service at the courthouse, the juror in
effect has removed herself from the panel. In that event, the
court’s decision is rather limited, whether to replace the
missing juror with an alternate or declare a mistrial. Common
17
sense suggests that an absent juror fits into the category of
“inability to continue” because a juror who is not present in
the jury room is unable to participate in any way -- as an
assenter, dissenter, or passive listener -- in the
deliberations.
A court does not have to indefinitely postpone a trial when
a deliberating juror fails to return to the courthouse to resume
her service. The court does not have to cede to the absent
juror control over the fate of the trial. After waiting a
reasonable interval and making inquiries to locate the missing
juror, the court has the discretion to proceed with the trial
and substitute an alternate juror on the panel. See, e.g.,
State v. Guytan, 968 P.2d 587, 590, 594 (Ariz. Ct. App. 1998)
(concluding that trial court did not err in substituting juror
who failed to appear for second day of deliberations without
engaging in inquiry); Commonwealth v. Robinson, 864 N.E.2d 1186,
1192-93 (Mass. 2007) (stating that “strong likelihood of
unreasonable delay from waiting for” juror who failed to appear
on third day of deliberations because of child-care issues
justified use of alternate juror (internal quotation marks
omitted)); cf. United States v. Peters, 617 F.2d 503, 505 (7th
Cir. 1980) (stating that “it is difficult to imagine a more
complete disqualification than a [juror’s] failure to appear”
during trial).
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We must also keep in mind that “there are times when jury
deliberations have proceeded too far to permit replacement of a
deliberating juror with an alternate.” Jenkins, supra, 182 N.J.
at 131. That critical threshold is passed when “it is strongly
inferable that the [remaining jurors have] made actual fact
findings or reached determinations of guilt or innocence [and]
there is a concern that the new juror will not play a meaningful
role in deliberations.” Id. at 132 (internal quotation marks
omitted). Thus, a court must assess whether “in light of the
timing of the juror’s dismissal and other relevant
considerations . . . a reconstituted jury will be in a position
to conduct open-minded and fair deliberations.” State v. Ross,
218 N.J. 130, 147 (2014).
C.
Any inquiry to determine whether a deliberating juror
should be removed and replaced with an alternate must be
carefully circumscribed to “protect the confidentiality of jury
communications.” Ibid. We have stressed that, in questioning a
juror or jurors, a court must diligently avoid “the inadvertent
disclosure of confidential information by a juror.” Jenkins,
supra, 182 N.J. at 134. “[M]aintaining the secrecy of jury
deliberations for the purpose of encouraging free and vigorous
discourse in the jury room” is of paramount importance. Ibid.
We have warned that “[t]he premature revelation of jurors’
19
voting inclinations could damage the deliberative process and
improperly influence the decisions that must be made by both
counsel and the court.” Ibid. Accordingly, the court “must
caution a juror at the outset of the colloquy that she must not
reveal the way in which any juror plans to vote, or the vote
tally on a verdict.” Ibid.; see, e.g., State v. Singleton, 290
N.J. Super. 336, 345 (App. Div. 1996) (observing that court,
during colloquy with juror, stated, “I don’t want you to tell me
what you’re thinking or what the other jurors are thinking”).
Generally, if a court inquires of a juror on the subject of
“inability to continue,” the questions must be carefully crafted
to elicit answers that only bear on reasons personal to the
juror and that in no way elicit the drift of the deliberations
or voting inclinations of any juror. For example, in Ross,
supra, when the trial court received a note from the jury that a
juror was “sick” and did not expect to return the next day, the
court questioned the juror about the illness -- not about the
jury’s deliberations. 218 N.J. at 139. When the juror informed
the court the following day that she was still ill, the court
dismissed the juror. Ibid. In Williams, supra, when the court
received a note that one juror could not attend the next day of
deliberations, the questioning of the juror focused on the
specific personal grounds giving rise to the problem -- the
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financial hardship caused by continued service. 171 N.J. at
159.
The point is that, in deciding whether those jurors were
able to continue on the jury panel, the questioning was limited
to assessing circumstances personal to the jurors and not
delving into the deliberative process. We do not suggest that
there is an inflexible rule that applies to the myriad scenarios
that may call for judicial inquiry of a jury, including
scenarios involving the introduction of taint into the jury
room. Suffice it to say that inquiry into the deliberative
process -- delving into the thoughts and views of jurors -- is
forbidden.
IV.
The issue before us is whether the trial court abused its
discretion in substituting an alternate juror for Juror Number 2
after she did not report for service on the second day of jury
deliberations. In addressing that issue, we begin by reviewing
the jury’s note at the end of the first day of deliberations.
The note informed the court that the jury, which had been
deliberating for several hours, was “undecided” at that point.
The note also contained three questions. Two of those questions
-- “How much time are we allotted tonight?” and “[C]an we get an
easel with a marker?” -- clearly indicate that the jury was not
deadlocked and was prepared to engage in further deliberations.
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The third question asked, “Can a particular juror be
excused from the case?” The court gave an appropriate response,
stating, “Generally the answer is no.” The court explained that
“if a juror wishes to be excused, it has to be for a good
reason,” and that a juror cannot be excused for “not getting
along with all the other jurors.” The court also pointed out
that alternate jurors were available “in case somebody becomes
ill . . . or someone has to leave.” The court emphasized,
however, that an excusal had to be based on “a very particular
reason, not because you’re not getting along and you don’t want
to be here any more.” Any juror wishing to be heard was invited
to raise the matter the next morning.
We do not know whether the question was provoked because of
a juror’s illness, need to attend to a sick relative or child
care responsibilities, financial hardship due to absence from
work, discord with other jurors, or some other reason.
Defendant’s supposition that the note indicated “something
unusual and troubling [was] going on in the jury room” is
nothing more than speculation. The court did not turn a blind
eye to the jury question, but was willing to hear from any juror
the following day. None came forward.
We do not know whether Juror Number 2, who did not appear
for the second day’s deliberations, was the same juror referred
to in the note. But even were we to engage in the unwarranted
22
assumption that Juror Number 2 was the subject of the note, she
had no right to purposely absent herself from jury service
without permission of the court -- whatever the reason. Of
course, we cannot discount the possibility that the juror was
kept from returning for reasons entirely beyond her control,
such as an accident. No one suggests that an alternate cannot
replace a juror who is involuntarily disabled from returning for
service.
Even if hypothetically the juror’s unexpressed reason for
not returning were due to a difference of view with other
jurors, that alone would not necessarily precipitate a mistrial.
A single juror cannot nullify jury deliberations -- and the
entire trial process -- by refusing to be physically present in
the jury room. Although no juror can be compelled to vote
against her wishes in the jury room, presence there is a
precondition for the ability to continue to serve. This
unlikely scenario should not present a real-life problem because
the court should remain unaware of a deliberating juror’s views
on guilt or innocence.
The Appellate Division claimed that the court fatally erred
by not questioning “the remaining jurors in an effort to
determine whether there was any connection between the previous
day’s question and Juror 2’s non-appearance.” However, the
appellate panel did not propose a question that would have
23
yielded relevant information on the issue of whether to proceed
with an alternate juror. Defendant maintains that the judge
could have asked: “Without revealing anything about
deliberations, can you tell me why you are inquiring about
excusing a juror?” But even a “no” answer to that open-ended
question would have intimated a problem related to the
deliberations.
We do not suggest that, without in any way intruding into
the deliberative process, a narrow line of questions could not
have been posed to the jury to attempt to learn some personal
reason for Juror Number 2’s non-appearance, particularly given
that the trial court was inclined to issue a bench warrant for
her arrest. For instance, the jurors could have been asked --
after receiving a strict admonition that any answer could not
reveal where any juror stood in the deliberations -- whether
they knew of some specific personal reason that kept Juror
Number 2 from returning for service, such as an illness or the
need to meet a family emergency. But whatever the answer might
have been, the court likely would not have been restrained from
substituting an alternate. A court is not required to postpone
a trial for an indefinite period because a deliberating juror
has not returned for service. See Guytan, supra, 968 P.2d at
590, 594; Robinson, supra, 864 N.E.2d at 1192-93. The court
made an alternate substitution approximately two hours after
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Juror Number 2’s failure to appear and after all efforts to
contact her were unsuccessful. Moreover, the record does not
indicate that Juror Number 2 appeared at any time on the second
day of deliberations.
In the end, although some limited form of questioning might
have been reasonable, we cannot conclude that the decision not
to pursue an inquiry in this delicate area constituted an abuse
of discretion warranting a mistrial. Questioning, if not
properly narrowed, had the potential to impermissibly infringe
on the jury’s deliberative process.
In summary, Juror Number 2’s failure to appear for the
second day of deliberations amounted to an “inability to
continue” under Rule 1:8-2(d)(1). The deliberations, moreover,
had not proceeded to a point where juror substitution was not
allowed. Defense counsel conceded this point at oral argument.
The jurors had deliberated for only one afternoon, had not
reached a decision, and requested an easel and marker to assist
in their continued discussions. Nothing in the record suggests
that jurors had so solidified their views that “a reconstituted
jury” was not capable of conducting “open-minded and fair
deliberations.” See Ross, supra, 218 N.J. at 147. Accordingly,
substituting an alternate juror for the missing juror was
25
permissible.2

Outcome: For the reasons explained, we reverse the judgment of the
Appellate Division and reinstate defendant’s conviction for
second-degree robbery. We remand to the Appellate Division to
address the issue it did not reach: whether the trial court’s
failure to give an identification charge denied defendant a fair
trial. We express no opinion on that subject.

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