State v. Michael Ross, II (072042)

93 A.3d 739, 218 N.J. 130, 2014 WL 2978321, 2014 N.J. LEXIS 610
CourtSupreme Court of New Jersey
DecidedJune 24, 2014
DocketA-67-12
StatusPublished
Cited by71 cases

This text of 93 A.3d 739 (State v. Michael Ross, II (072042)) is published on Counsel Stack Legal Research, covering Supreme Court of New Jersey primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Michael Ross, II (072042), 93 A.3d 739, 218 N.J. 130, 2014 WL 2978321, 2014 N.J. LEXIS 610 (N.J. 2014).

Opinions

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. 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, 413 A.2d 593 (1980). Confronted with a [137]*137report that a juror was unable to continue because she was ill, the trial court verified that the 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 remand to the Appellate Division for consideration of the remaining issues that the panel did not reach in light of its resolution of the jury substitution issue.

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)(l),(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 ear similar to the victims’ vehicle. In the course of the trial, the jury heard the 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.

[138]*138The 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, 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 Czachor, supra, 82 N.J. 392, 413 A.2d 593 (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 ease 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 [139]*139opinion of your fellow jurors or for the mere purpose of returning a verdict. You are not partisans. You are judges, judges of the facts.

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.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State of New Jersey v. Marc W. Dennis
New Jersey Superior Court App Division, 2025
Angela Koukounias v. New Jersey Manufacturers Insurance Company
New Jersey Superior Court App Division, 2025
State of New Jersey v. Andrew Pena
New Jersey Superior Court App Division, 2025
State of New Jersey v. A.H.-s.
New Jersey Superior Court App Division, 2024
State of New Jersey v. Kwamere T. Benjamin
New Jersey Superior Court App Division, 2024
State of New Jersey v. Douglas A. Lewis
New Jersey Superior Court App Division, 2024
State of New Jersey v. Elias Cano
New Jersey Superior Court App Division, 2024
SMITH v. DAVIS
D. New Jersey, 2022
SMITH v. NOGAN
D. New Jersey, 2022

Cite This Page — Counsel Stack

Bluebook (online)
93 A.3d 739, 218 N.J. 130, 2014 WL 2978321, 2014 N.J. LEXIS 610, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-michael-ross-ii-072042-nj-2014.