NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3363-13T3
STATE OF NEW JERSEY, APPROVED FOR PUBLICATION Plaintiff-Appellant, July 10, 2014 v. APPELLATE DIVISION
QUAHEEM JOHNSON,
Defendant-Respondent. _______________________________________
Argued May 28, 2014 – Decided July 10, 2014
Before Judges Sabatino, Hayden and Rothstadt.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 08-08-1494.
Gerard H. Breland, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for appellant (Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney; Mr. Breland, on the brief).
Peter T. Blum, Assistant Deputy Public Defender, argued the cause for respondent (Joseph E. Krakora, Public Defender, attorney; Mr. Blum, on the brief).
The opinion of the court was delivered by
ROTHSTADT, J.S.C. (temporarily assigned)
An indictment charged defendant Quaheem Johnson with
various offenses, including murder, felony murder, and armed robbery, relating to his committing two separate robberies and
killing one of the victims. A jury could not reach a unanimous
verdict as to those charges but, as to murder and armed robbery,
it convicted defendant of uncharged, lesser-included offenses.
Despite the jury being deadlocked as to the greater, charged
offenses, the trial court accepted the jury's verdict and had it
recorded. The State sought thereafter to retry defendant on
felony murder and murder,1 and defendant moved to bar a retrial
arguing that double jeopardy principles and the improper
termination of his prosecution barred a new trial as to those
charges. The trial court agreed with defendant's arguments and
granted his motion. We stayed further proceedings and granted
the State leave to appeal the trial court's order.
Defendant's circumstances raise a question of first
impression: whether a trial court improperly terminates a
defendant's prosecution, within the meaning of N.J.S.A. 2C:1-9,
by accepting a partial verdict where the jury is deadlocked as
to greater, charged offenses, but is unanimous in its finding of
guilt as to uncharged, lesser-included offenses. After
considering the State's argument in the context of the unusual
circumstances revealed by the record, we answer the question in
1 On appeal, the State argues that it seeks to retry defendant only on felony murder.
2 A-3363-13T3 the affirmative and affirm the trial court's determination that
defendant's retrial on felony murder is barred because of the
improper termination of his prosecution.2
I.
According to the State's proofs, on April 8, 2008,
defendant shot and killed Ramon Francisco Morales while in the
course of taking his necklace. Shortly thereafter, and several
blocks away, defendant held another victim, Javier Galeas, at
gunpoint and took his chain as well. Police responded to the
scene and, after ten to fifteen minutes, spotted defendant in
the general vicinity of the commission of the crimes. They
commanded defendant to stop, but he fled. While being pursued,
he pointed a handgun in the direction of one of the officers.
As a result, the officer discharged his weapon twice, but missed
defendant. The officer eventually apprehended defendant, and
both victims' necklaces were found on his person. The police
also recovered a gun in a nearby yard, and ballistics tests
later confirmed that it was the murder weapon.
Defendant was charged in an indictment with murder,
N.J.S.A. 2C:11-3(a) (count one); felony murder, N.J.S.A. 2C:11-
2 Because we agree with the court's determination that defendant's prosecution was improperly terminated, we choose not to address the court's separate determination that defendant's retrial was barred by double jeopardy considerations.
3 A-3363-13T3 3(a)(3) (count two); armed robbery, as to Morales, N.J.S.A.
2C:15-1(b) (count three); unlawful possession of a weapon,
N.J.S.A. 2C:58-4, 39-5(b) (count four); possession of a weapon
for an unlawful purpose, as to Morales, N.J.S.A. 2C:39-4(a)
(count five); armed robbery, as to Galeas, N.J.S.A. 2C:15-1
(count six); possession of a weapon for an unlawful purpose,
N.J.S.A. 2C:39-4(a) (count seven); aggravated assault, as to
police officer Jesse Hillburn,3 N.J.S.A. 2C:12-1(b)(4) (count
eight); resisting arrest, N.J.S.A. 2C:29-2(a) (count nine); and
possession of a weapon for an unlawful purpose as to Hillburn,
N.J.S.A. 2C:39-4(a) (count ten).4
Defendant's first trial ended in a mistrial due to jury
intimidation. The court conducted a new trial from October 9 to
November 9, 2012. The jury deliberated from October 23 to
October 25; then, after Hurricane Sandy, which devastated New
Jersey on October 29, 2012, it continued deliberations from
November 7 to November 9. The original presiding judge became
unavailable, so a different judge presided over the last three
3 Hillburn is the officer at whom defendant allegedly pointed the gun. 4 The offenses are those charged to the jury by the court. The original indictment charged defendant in three other counts with unlawful possession of a weapon, but those charges merged due to the fact that the same weapon was used in all offenses.
4 A-3363-13T3 days of the jury's deliberations and ultimately received the
jury's verdict.
Before charging the jury, the first judge supplied it with
a verdict sheet that sequentially followed the counts in the
indictment. The verdict sheet contained each of the indicted
charges and, where appropriate, the uncharged, lesser-included
offenses. It specifically instructed that the lesser-included
offenses were not to be considered unless the jury's verdict was
"Not Guilty" on the greater, charged offenses.5 It treated
greater, uncharged offenses in the same manner relative to
lesser, uncharged offenses – the lesser offense was to be
considered only if the verdict was not guilty as to the greater
offense. For example, as to count one, murder, the jury was
instructed to first consider "purposeful and knowing" murder;
then, only if its verdict was not guilty as to murder, the jury
could move on to consider aggravated manslaughter. Similarly,
the jury was instructed that it must first find defendant not
guilty of aggravated manslaughter, before moving on to consider
reckless manslaughter.
As to the jury's use of the verdict sheet, the judge
initially instructed:
5 The parties agree that there was no issue raised at trial, or now on appeal, relating to defendant's consent to the inclusion of these uncharged offenses.
5 A-3363-13T3 Now you all have a copy of the verdict sheet, don't look at it yet though. I'll point it out to you when it's necessary. I mean, I'll – as we go over each charge, I'll direct you to the verdict sheet and – explain it.
The judge then charged the jury with general instructions
and followed them with charges as to each offense contained in
the indictment, substantially in accordance with the model jury
charges. However, unlike the verdict sheet, the judge did not
sequentially follow the counts in the indictment. Instead, he
first charged count three, first-degree robbery of Morales,
followed by the lesser-included offenses of second-degree
robbery and theft. Next, the judge charged count two, felony
murder. As the judge explained:
Now I'm going to go to Count 2 . . . felony murder. The State contends that on April 19th, 2008, while defendant was engaged in the commission of or flight after committing the crime of robbery as charged in Count 3, which is why I defined robbery for you first. . . .
. . . .
You cannot find defendant guilty of felony murder unless you first find him guilty beyond a reasonable doubt of having committed the crime charged in Count 3, robbery. So that's to be your first consideration and again, which is why I gave you robbery first, all right.
6 A-3363-13T3 Next, the judge charged the jury with count one, murder,
and then instructed,6
If . . . you determine the State has not proven beyond a reasonable doubt the defendant purposely or knowingly caused death or serious bodily injury resulting in death, then you must find him not guilty of murder and go on to consider whether the defendant should be convicted of the crimes of aggravated or reckless manslaughter.
While charging the jury with these two lesser-included offenses,
the judge told the jury that they were to consider reckless
manslaughter only if they were not convinced that defendant
committed aggravated manslaughter.
At the conclusion of the court's charge as to reckless
manslaughter, the judge stated, "You'll note I gave you the
verdict sheet and the details of [the] lesser included [offenses
are] there." Afterwards, the judge instructed the jury with the
remaining charges following their sequential order in the
indictment, but grouping them together where appropriate.
However, the judge did not review with specificity or "explain"
the verdict sheet which, again, unlike the charge, was arranged
sequentially, following the order of the indictment. In the
6 The court first instructed the jury that it could find defendant guilty if the jurors were satisfied the State proved his guilt beyond a reasonable doubt. The court did not, however, tell the jury that if it found defendant guilty of murder it should skip aggravated and reckless manslaughter and move on to the next count.
7 A-3363-13T3 judge's only other comments to the jury about the verdict sheet,
he stated,
I've given you the verdict sheet to assist you in . . . your deliberations. The verdict sheet is evidence of nothing. It's simply a document to help you arrange your thoughts relative to deliberations and to reveal what your verdict is in open court.
Thereafter, following three days of initial deliberations
and the hurricane-related hiatus, the second judge substituted
for the first judge. Two significant incidents occurred
involving the jury while the second judge presided over its
deliberations.7 First, the judge had to address the jury's
confusion about when it should consider the uncharged, lesser-
included offenses about which it was instructed by the first
judge. Second, the judge had to deal with a dispute that arose
between two jurors.
Specifically, on November 8, the jurors asked the following
in a note:
[W]ith regard to counts that have multiple sections that require a decision on the . . . first part rather, to move to the subsequent sections, do we have to find unanimously guilty or not guilty in order to
7 In fact, the second judge was forced to confront several issues in a trial about which that judge had no familiarity under the extraordinary circumstances created by Hurricane Sandy. We are sympathetic to those circumstances into which the second judge was placed with very little notice.
8 A-3363-13T3 move to the next section or can we be deadlocked on the first part and move to the second and third section[?]
After reviewing the note with the second judge, both
counsel agreed that the jury should be re-instructed to make
unanimous findings as to the greater, charged offense in each
count, before considering an uncharged, lesser-included offense,
if appropriate, in accordance with the verdict sheet's
instructions. The second judge disagreed, based on that judge's
concern that by so instructing, the court would be directing the
jury's deliberations. The second judge ultimately instructed:
[T]he verdict sheet is not evidence, nor is it law. It is simply a tool that [the first judge] prepared to assist you in your deliberations. You may deliberate about the charges in any order you wish to, the [c]ourt cannot direct your deliberations.
[(Emphasis added).]
The second judge gave that instruction recognizing that the
jury could be "deadlocked" as to the greater, charged offense,
because "[i]t's happened before in cases, it's something that –
that can in fact, occur." The second judge, therefore, never
told the jurors that they had to find defendant not guilty of
the charged offense before they could consider the uncharged,
lesser-included offenses.
Before sending the jury back to continue its deliberations,
the second judge also stated,
9 A-3363-13T3 With that I ask you to return to the jury room. You can certainly send out any other questions you wish to and remember, please do not tell me where you stand, whether you are deadlocked or – I'm sorry, whether . . . you stand – where you stand as to each charge.8
Later that same day, the court's officer informed the judge
and counsel about a dispute between jurors two and eleven, and
that juror two was outside the jury room refusing to go back in
because she "did not want to be ridiculed anymore." The judge
spoke to juror two with counsel present, who informed the judge
that she was insulted by more than one other juror "at different
points." The judge then sent juror two back to the jury room
and brought out juror eleven, who explained that juror two was
"refusing to participate or just mak[ing] up stuff that is no
way related to the facts that were presented by either side of
the case." Juror eleven informed the judge that "we've all
agreed that we should take a break and come back and cool off
and start over in the morning." The judge sent juror eleven
8 After the jury returned to deliberate, counsel pointed out to the second judge that the judge told the jury not to disclose if it was deadlocked. The judge conceded that was said but the judge believed the statement was already corrected. It was not, although, as we note infra, it was later addressed by the second judge.
10 A-3363-13T3 back to the jury room and conferred with counsel.9 Defendant's
attorney requested a modified Allen/Czachor10 charge, although
9 Although not an issue before us, we note that the judge did not question the other jurors about whether the feuding jurors' dispute impacted their deliberations, or give any instructions to the jury about the dispute or take any further action to guarantee the integrity of the deliberations or the safety of the jurors. See State v. Dorsainvil, 435 N.J. Super. 449, 487 & n.20 (App. Div. 2014) ("When violence intrudes into the deliberative process in any form and to any degree, a trial judge must take immediate action to investigate what occurred, not only to determine whether a defendant's right to a fair and impartial trial has been compromised, but also to ensure the safety and security of all involved."). 10 Allen v. United States, 164 U.S. 492, 17 S. Ct. 154, 41 L. Ed. 528 (1896); State v. Czachor, 82 N.J. 392 (1980). The charge is given to the jury when the court is informed they may be deadlocked. See State v. Ross, ___ N.J. ___, ___ (2014) (slip op. at 12-14); State v. Figueroa, 190 N.J. 219, 231-39 (2007). Usually, upon being so notified, a court will charge the jury in accordance with the Model Jury Charge (Criminal), "Judge's Inquiry When Jury Reports Inability To Reach Verdict" (2013), as follows:
You have indicated that your deliberations have reached an impasse. Do you feel that further deliberations will be beneficial or do you feel that you have reached a point at which further deliberations would be futile? Please return to the jury room to confer, and advise me of your decision in another note.
Then, if the jurors notify the judge they are deadlocked, the judge will instruct them in accordance with Model Jury Charge (Criminal), "Judge's Instructions On Further Jury Deliberations" (2013),
It is your duty, as jurors, to consult with one another and to deliberate with a view to reaching an agreement, if you can do (continued)
11 A-3363-13T3 the jury never informed the court that it was deadlocked. After
considering the request, the judge decided not to give the
charge but to break for the day.
Before the judge brought the jury into the courtroom,
defendant's counsel returned to the issue of the court telling
the jury not to inform the court that it was deadlocked.
Counsel moved for a mistrial on that basis. The court denied
the motion, telling counsel that the court would, however,
"remind them" that the jurors should not disclose where they
stand in their voting at any point in their deliberations, "[o]f
course that doesn't apply to whether or not they're deadlocked."
When the judge brought the jury out to dismiss them for the day,
the judge in fact told the jury to
remember . . . if you do send me questions, just to clarify something I said before, I
(continued) so without violence to individual judgment. Each of you must decide the case for yourself, but do so only after an impartial consideration of the evidence with your fellow jurors. In the course of your deliberations, do not hesitate to re-examine your own views and change your opinion if convinced it is 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.
12 A-3363-13T3 don't want to know where you stand on any given charge. . . .
But certainly for deadlock, that's a different issue, okay. So I – I think I might have misspoken . . . in that case. If you're deadlocked, I need to know that.
During the rest of the jury's deliberations, the jury never
informed the judge it was deadlocked, and the judge never gave
the modified Allen/Czachor charge.
Prior to the second judge's subsequently receiving the
jury's verdict in open court and having it recorded, the jury
sent another note to the court. The note stated that the jurors
wanted "all the jury requests [sic] to be polled on each and
every count." After conferring with counsel, the judge decided
that the court would have the foreperson state the jury's
verdict as to a count, do the polling as to that count by asking
each juror if his or her individual verdict was guilty or not
guilty, then move on to the next count. When the judge brought
the jury out to take its verdict the following occurred:
THE COURT: Good afternoon, Ladies and Gentlemen. I'm aware that you have reached a verdict. Also, I received [a] note which I marked J-22, all of the jurors request to be polled on each and every count and I intend to do so in this regard.
I will ask the foreperson what the verdict was as to each count and then move to each juror and ask whether you – that is your verdict as well.
13 A-3363-13T3 So would the foreperson please rise. Miss Foreperson, has this jury agreed upon a verdict?
MS. FOREPERSON: Yeah.
THE COURT: You seem hesitant. Well, is the verdict unanimous?
MS. FOREPERSON: Not on all counts.
THE COURT: Not on all counts. All right. Have you reached a verdict on any of the counts?
MS. FOREPERSON: Yes.
The judge then asked counsel if they had any objection to
the court proceeding to take the verdicts. The prosecutor had
no objection and defendant's attorney deferred to the court's
"discretion."
The foreperson then advised the court that the jury did not
reach a verdict as to the charged offense of count one,
purposeful and knowing murder. The second judge did not poll
the jury about its vote on the murder charge. Instead, the
second judge immediately inquired as to the uncharged, lesser-
included offense of aggravated manslaughter, despite the jury
not reaching any verdict as to the greater charged offense of
murder.11 The foreperson advised the judge the jury found
11 At oral argument before us, the prosecutor conceded that defense counsel did not waive his ability to appeal this procedure by not interjecting an objection at that moment.
14 A-3363-13T3 defendant guilty of aggravated manslaughter. The judge then
polled the jurors by asking each of them, "[I]s that your
verdict?" Each responded in the affirmative.12 The judge then
moved on to count two, felony murder, and the foreperson
informed the court that the jury again did not reach a verdict
as to that charge. The judge did not poll the jury but rather
moved on to count three, armed robbery. Again, the foreperson
informed the judge that the jury did not reach a verdict as to
that charge. The judge moved on to the uncharged, lesser-
included offense of second-degree robbery, and the foreperson
informed the court that the jury found defendant guilty of that
charge, and then the judge polled the jury. The judge followed
the same process for the remaining counts, and the foreperson
advised the court that the jury found defendant guilty of all
additional charges, except for counts five, possession of a
weapon for an unlawful purpose; eight, aggravated assault for
pointing a firearm at Officer Hillburn; and ten, another charge
of possession of a weapon for an unlawful purpose.
The verdict sheet reflected the verdict as "deadlocked" for
counts one, murder; two, felony murder; three, armed robbery;
five, possession of a weapon for an unlawful purpose; eight,
12 It is assumed juror nine did so as well, although the transcript indicates "no audible response recorded."
15 A-3363-13T3 aggravated assault; and ten, possession of a weapon for an
unlawful purpose. The verdict sheet also reflected that,
despite being deadlocked on the greater charged offenses, the
jury rendered guilty verdicts as to aggravated manslaughter,
N.J.S.A. 2C:11-4(a)(1), reckless manslaughter, N.J.S.A. 2C:11-
4(b)(1),13 and second-degree robbery, N.J.S.A. 2C:15-1(a)(2),
which were all uncharged, lesser-included offenses that the
verdict sheet instructed should only be considered if the jury
found defendant not guilty of the charged offense.
After the judge received the verdict and was about to
discharge the jury, one of the jurors reminded the judge that
the jury "wanted to be polled on all of the counts, even the
ones that we've not reached a verdict on – the ones that we're
deadlocked on. That was the unanimous opinion of the jury."
After conferring with counsel, the court ultimately declined to
poll the jurors on the undecided counts because "[i]t would be
inappropriate for [the court] to delve into how each of [the
jurors] voted on counts in which [the jury] was not unanimous."14
The judge then thanked and discharged the jury.
13 The foreperson never announced this verdict to the court. It only appeared on the verdict sheet. 14 Although not material to our decision in this case, we note our agreement with the second judge's decision to not poll jurors where a verdict was not reached. Polling should only (continued)
16 A-3363-13T3 The State subsequently sought to retry defendant for murder
and felony murder. Defendant filed a motion to bar a retrial
based on 1) double jeopardy, and 2) improper termination of the
original prosecution, N.J.S.A. 2C:1-9(d), 1-10(a), 1-10(c).
After considering the parties' oral argument, the first judge
granted defendant's motion. As explained in the judge's written
"Statement of Reasons," the court found that double jeopardy
precluded the State from re-trying defendant for felony murder
and murder. The court further reasoned that defendant's
prosecution had been improperly terminated because the jury was
allowed to convict defendant of lesser-included offenses without
acquitting him of the greater charges, and a retrial would be
prejudicial under the circumstances. As the first judge
explained:
The second trial judge did not respond specifically to the jury question relative to the order in which greater and lesser included offenses must be considered, although the first trial judge did so in [the judge's] instructions to the jury and in [the] verdict form. The second trial judge gave a response as it relates to separate counts in the indictment. That is, the jury can deliberate as to separate counts in the indictment in any order they wish. This did not answer the jury's specific question, although it is unknown
(continued) occur when a verdict is reached. R. 1:8-10; State v. Milton, 178 N.J. 421, 432-33 (2004).
17 A-3363-13T3 whether the jury may have believed otherwise.
The second trial judge then accepted verdicts on the lesser-included offenses without the defendant being acquitted of the greater offense. Rather than acquitting the defendant on the counts of Murder, Armed Robbery, and Felony Murder, the jury informed the [j]udge that they could not reach a verdict. Despite this, the jury found the defendant guilty of Aggravated Manslaughter and Robbery; however, those offenses should not have been considered since the jury did not acquit the defendant of the greater offenses, they simply failed to reach a verdict.
Following Cooper,[15] if the jurors are split between the greater charge and the acquittal, the result is a "hung" jury. Nevertheless, since the defendant has already been found guilty of Aggravated Manslaughter and Robbery, (although the evidence overwhelmingly supported a murder conviction), the defendant will be prejudiced if as a result of a "hung jury" on the greater offenses, he is forced to go back to trial to face Felony Murder and Murder counts. The defendant would find himself facing a trial where the State is arguing elements and using evidence for charges for which he has already been found guilty. The defendant should not have to suffer because Cooper, supra, 151 N.J. at 366, was not specifically followed. A retrial would certainly prejudice the defendant.
15 State v. Cooper, 151 N.J. 326, 366 (1997) (" Ordinarily, juries may not consider lesser-included offenses until they have acquitted of the greater offense.").
18 A-3363-13T3 The court subsequently denied the State's motion for a stay
of the proceedings, and the State then filed an emergent
application to appeal the order barring retrial and denying a
stay of the proceedings. Defendant did not move for leave to
cross-appeal any of the trial court's rulings. Sentencing has
been stayed, and no judgment of conviction has been entered.
II.
The State contends that the court's granting of defendant's
motion to bar his retrial as to felony murder constituted a
misapplication of the law. Our review of "the legal conclusions
and analysis of the trial court . . . is plenary." State v.
Harris, 211 N.J. 566, 578-79 (2012) (citing State v. Handy, 206
N.J. 39, 45 (2011)). We therefore review the judge's legal
conclusions de novo. State v. Harris, 181 N.J. 391, 420-21
(2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed.
2d 898 (2005). Applying this standard here, we agree with the
trial court that the second judge improperly terminated
defendant's prosecution, thereby preventing the State from
retrying him on any of the charges upon which the jury was
"deadlocked." N.J.S.A. 2C:1-9(d), 1-10(a), 1-10(c).
Ordinarily "double jeopardy . . . do[es] not prohibit
retrial of a defendant when a prior prosecution for the same
offense has ended in mistrial attributable to the inability of
19 A-3363-13T3 the jury to agree on a verdict," because "the jeopardy to which
the defendant is exposed is considered a continuation of
original jeopardy, which was not terminated by the mistrial."
State v. Abbati, 99 N.J. 418, 425-26 (1985). However, a
successive prosecution for the same offense is barred if the
former prosecution was improperly terminated, N.J.S.A. 2C:1-
9(d), "and the subsequent prosecution is for an offense of which
the defendant could have been convicted had the former
prosecution not been improperly terminated." N.J.S.A. 2C:1-
10(c). Termination of a prosecution is improper "if the
termination is for reasons not amounting to an acquittal, and it
takes place after the jury was impaneled and sworn." N.J.S.A.
2C:1-9(d).16
16 N.J.S.A. 2C:1-9(d) states that termination is not improper if,
(1) The defendant consents to the termination or waives, by motion to dismiss or otherwise, his right to object to the termination[;]
(2) The trial court finds that the termination is necessary because of the failure of the jury to agree upon a verdict after a reasonable time for deliberation has been allowed[; or]
(3) The trial court finds that the termination is required by a sufficient legal reason and a manifest or absolute or overriding necessity.
20 A-3363-13T3 As we have previously explained,
Under the New Jersey Code of Criminal Justice, a prosecution of a defendant is barred by a former prosecution for the same offense upon the same facts when the former prosecution was improperly terminated. N.J.S.A. 2C:1-9d. However, a termination is not considered improper where "[t]he trial court finds that the termination is necessary because of the failure of the jury to agree upon a verdict after a reasonable time for deliberation has been allowed." N.J.S.A. 2C:1-9d(2). The trial court is vested with "broad discretionary authority" to declare a mistrial due to a deadlocked jury and its decision to do so may be reversed only for an abuse of discretion.
[State v. Paige, 256 N.J. Super. 362, 381 (App. Div.), certif. denied, 130 N.J. 17 (1992) (citations omitted).]
We are satisfied that the second judge's acceptance of a
partial verdict constituted a mistaken exercise of the court's
discretion resulting in the improper termination of defendant's
prosecution. Generally, a matter is not terminated until the
jury's verdict is final, which occurs when "'the deliberations
are over, the result is announced in open court, and no dissent
by a juror is registered.'" State v. Rodriguez, 254 N.J. Super.
339, 348 (App. Div. 1992) (quoting United States v. Rastelli,
870 F.2d 822, 834 (2d Cir.), cert. denied, 493 U.S. 982, 110 S.
Ct. 515, 107 L. Ed. 2d 516 (1989)). Where the court determines
that, in a criminal action, the jury has not reached a unanimous
verdict, "the jury may be directed to retire for further
21 A-3363-13T3 deliberations or discharged." R. 1:8-10. A judge has
discretion to require further deliberations after a jury has
announced its inability to agree, Figueroa, supra, 190 N.J. at
235, "but exercise of that discretion is not appropriate 'if the
jury has reported a definite deadlock after a reasonable period
of deliberations.'" State v. Adim, 410 N.J. Super. 410, 423-24
(App. Div. 2009) (quoting Czachor, supra, 82 N.J. at 407).
Under those circumstances, a mistrial may be declared which "'is
not a judgment or order in favor of any of the parties' and
'lacks the finality of a judgment and means that the trial
itself was a nullity.'" State v. Miller, 382 N.J. Super. 494,
503 (App. Div. 2006) (quoting State v. Cruz, 171 N.J. 419, 426
(2002)); see also State v. Hale, 127 N.J. Super. 407, 412 (App.
Div. 1974).
In a case involving multiple counts to an indictment, a
trial court may accept a partial verdict "specifying the count
or counts as to which [the jury] has agreed. R. 3:19-1(a).
"[T]he defendant . . . may be tried again on the count or counts
as to which it has not agreed." Ibid. "[T]rial courts possess
the discretion to accept [partial] verdicts absent a showing of
prejudice to the defendant." State v. Shomo, 129 N.J. 248, 257
(1992).
[P]artial verdicts may be warranted, for example, when the jury has deliberated at
22 A-3363-13T3 length, when the charges against a defendant are rooted in unrelated facts, when the court has reason to be concerned that a juror may become ill before deliberations conclude, when there is risk of taint to the jury's decision-making process, or when the State has indicated its intention to dismiss the unresolved counts.
[Id. at 257-58.]
A partial verdict may be considered final when,
a jury was properly instructed, and when the verdict was received in open court, recorded, and, if requested, confirmed by a polling of the jurors. Under those conditions, an interim partial verdict will be subject to impeachment in the same limited circumstances that warrant challenge of a final verdict rendered at the end of jury deliberations.
[Id. at 259 (emphasis added).]
We have approved the acceptance of a partial verdict and
the defendant's retrial where, for example, a jury acquitted a
defendant of a greater, charged offense but could not reach a
verdict on the uncharged, lesser-included offense. State v.
Ruiz, 399 N.J. Super. 86, 99 (App. Div. 2008). However,
"[b]ecause of the potential compromise to either a defendant's
or government's interests, and the risk of interfering with jury
deliberations, we strongly discourage routine use of partial
verdicts." Shomo, supra, 129 N.J. at 257 (emphasis added).
Before accepting either a complete or partial verdict which
includes counts upon which the jury is "hung" or "deadlocked," a
23 A-3363-13T3 court must determine if the deadlock is "intractable." Ross,
supra, __ N.J. at __ (slip op. at 15) (quoting Figueroa, supra,
190 N.J. at 237). If, after considering "such factors as the
length and complexity of [the] trial and the quality and
duration of the jury's deliberations," id. at __ (slip op. at
12) (quoting Czachor, supra, 82 N.J. at 407), the court is not
satisfied that the deadlock is "intractable," the court should
instruct the jury with the modified Allen/Czachor charge and
direct the jury to continue its deliberations. Id. at __ (slip
op. at 13-15.); Czachor, supra, 82 N.J. at 407. As the Court
recently noted,
In authorizing continued deliberations following a deadlock and an instruction, this Court declined to hold in Czachor, supra, 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.
[Ross, supra, __ N.J. at __ (slip op. at 28).]
24 A-3363-13T3 A declaration of a mistrial is then warranted only when the
jury "signal[s] an intractable divide," id. at __ (slip op. at
15), and the court is satisfied that "the jury has made a good-
faith effort to reach a sustainable verdict" after the court
first considers "the duration of the deliberations balanced
against the length of the trial and the complexity of the
proofs." Dorsainvil, supra, 435 N.J. Super. at 481.
In this case, the second judge received the partial verdict
in open court and recorded it even though the jury informed the
court, for the first time, at the outset of the verdict
proceedings, that it had not reached a verdict as to the first
count. The second judge never made further inquiry as to the
nature of the deadlock, nor did the judge perform the required
analysis to determine whether to proceed to deliver the modified
Allen/Czachor charge.
Also, we are satisfied that there is a substantial
likelihood that the verdict was the result of the second judge's
erroneous instructions to the jurors about the manner and
sequence in which they could consider the uncharged, lesser-
included offenses. See Cooper, supra, 151 N.J. at 366.17 The
17 As the Supreme Court explained in Cooper, supra, 151 N.J. at 366 (citations omitted),
(continued)
25 A-3363-13T3 fact that the verdict sheet correctly advised the jurors that
they could not consider the uncharged, lesser-included offenses
unless they reached a verdict of not guilty on the greater
charge did not cure the problem. "A verdict sheet is intended
for recordation of the jury's verdict and is not designed to
supplement oral jury instructions." State v. Gandhi, 201 N.J.
161, 196 (2010). Therefore, "[a] jury verdict must be guided by
correct legal instructions and 'erroneous instructions on
matters material to the juror's deliberations are presumed to be
reversible error.'" Dorsainvil, supra, 435 N.J. Super. at 480
(quoting State v. Allen, 308 N.J. Super. 421, 431 (App. Div.
1998)). While, as the first judge correctly noted, the second
judge's instructions addressed the order in which the jury could
consider the various counts of the indictment,18 it did not
(continued) Ordinarily, juries may not consider lesser-included offenses until they have acquitted of the greater offense. The rationale behind the sequential ordering of greater and lesser-included offenses is that the jury must convict of the crime supported by the evidence, as opposed to compromising between jurors who want the greater charge and jurors who want to acquit. Thus, if jurors are split between the greater charge and acquittal, the result is a hung jury. 18 That instruction contradicted the first judge's original instruction that the jury should consider the robbery charges before considering the felony murder charge.
26 A-3363-13T3 address the manner the jurors should consider the uncharged,
We are satisfied that the cumulative effect of 1) the
court's failure to properly instruct the jury about the limited
circumstances in which it would be permitted to consider the
uncharged, lesser-included offenses, 2) its failure to insist on
there being a unanimous not guilty verdict before taking the
verdict on the uncharged, lesser-included offenses, 3) its
failure to review the verdict sheet with the jurors, combined
with 4) the apparent confusion caused by the court's initially
telling the jury to not inform the court if it was deadlocked
should have resulted in the court not accepting the jury's
verdict as final when the court learned the jury was deadlocked.
Rather than proceeding to accept improper, partial verdicts, the
court should have considered the extent of the jury's deadlock
and reinstructed the jury about the proper manner to consider
the uncharged offenses. It should then have directed them to
continue their deliberations. We recognize the second judge's
well-intentioned desire to refrain from interfering unduly in
the jury's deliberations. However, the second judge nonetheless
strayed too far from case law disfavoring partial verdicts in
the judge's deference to the jury.
27 A-3363-13T3 Because of these numerous critical errors and omissions,
the jury was allowed to reach verdicts on charges in specific
counts that they should not have even considered had they been
instructed properly. The erroneous instructions tainted the
jury's consideration of all of the unresolved charges, including
felony murder, because, under these circumstances, not only was
defendant's prosecution "improperly terminated," N.J.S.A. 2C:1-
9(d), but there was also a potential that defendant's right to a
unanimous jury verdict was denied, Shomo, supra, 129 N.J. at
258. To allow a retrial on felony murder in this case would be
a clear miscarriage of justice.
Affirmed. Remanded for sentencing and the entry of a
judgment of conviction. We do not retain jurisdiction.
28 A-3363-13T3