STATE OF NEW JERSEY V. RAFAEL VALENZUELA
Case Date: 07/13/1994
Docket No: SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for
the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not have been summarized).
Argued January 5, 1994 -- Decided July 13, 1994
STEIN, J., writing for a unanimous Court.
The issue before the Court on appeal is whether the trial court properly exercised its discretion in
discharging a juror and substituting an alternate juror after the jury had begun deliberations.
Rafael Valenzuela was indicted on charges of first-degree aggravated sexual assault and second-degree robbery stemming from his alleged rape of a female acquaintance. At the close of the State's case,
the trial court reduced the robbery charge to the lesser-included offense of fourth-degree theft and also
reduced the first-degree aggravated-sexual-assault charge to second-degree sexual assault.
Prior to jury deliberations, the court instructed the jury on the applicable law and reduced the
fourteen member jury panel to twelve members by selecting by lot the names of two jurors. The court
designated those jurors, in the order they were selected, as the first and second alternate jurors. The
alternate jurors were retained in a separate location from the jury during deliberations.
About fifty minutes into its deliberations, the jury sent a note out to the court stating that one
member "doesn't want to be" a juror. The court questioned Juror No. 9 out of the presence of the other jury
members about her ability to perform her function as a juror. After completing the questioning of the juror
and conferring with counsel, the court determined to leave Juror No. 9 on the jury, stating that the record
did not contain enough information to warrant her removal. The court instructed the jury to return to the
jury room, to discuss the case, and to apply the law to the facts in an effort to reach a decision.
Less than a half hour later, the court received a second note from the jury telling the court that
Juror No. 9 does not understand the process and "continues to change her plea every ten seconds" and that
she is very confused. Again, the court questioned Juror No. 9 out of the presence of the other jurors. After
completing its questioning, the court, over defense counsel's objection, removed Juror No. 9. The court
found that the jury's note indicates that Juror No. 9 is not able to function as a juror. The court also noted
that the juror had been observed talking to herself and that, based on the observation of the juror and her
responses to his questions, she is "somewhat, bizarre," and unable to fulfill the functions of a juror.
The court dismissed Juror No. 9 on its own motion because it considered her to be "unable to
continue," under the language of Rule 1:8-2(d). The court directed the juror who had been designated the
first alternate to take Juror No. 9's place. The court instructed the reconstituted jury that it must begin work
"anew." Fifty-five minutes thereafter, the jury returned its verdict, finding Valenzuela guilty of sexual assault
and not guilty of theft. Valenzuela was sentenced to ten years' imprisonment with a four-year period of
parole ineligibility.
On appeal, the Appellate Division reversed the conviction, finding that the trial court had improperly
discharged the juror because the record did not clearly evidence that the excused juror was ill or otherwise
unable to continue. On the basis of that error, as well as the trial court's failure to have the court clerk
select a substitute juror by lot, and the substitution of an alternate juror after the remaining eleven jurors
had progressed in deliberations to a stage approaching agreement on a verdict, the Appellate Division
reversed Valenzuela's conviction and remanded for a new trial.
The Supreme Court granted the State's petition for certification.
HELD: A juror cannot be discharged as "unable to continue" deliberations 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 other jury members. The record in this case does not clearly indicate
that the juror was "unable to continue;" it can be implied from the record that the juror's
problems related not only to personal circumstances but also to factors arising from the juror's
interactions with other jurors. Therefore, the trial court abused its discretion in discharging
Juror No. 9.
1. Rule 1:8-2(d) governs the empaneling of additional jurors and the discharge and substitution of
jurors. Concerning dismissal of a juror after deliberations have begun, the court is to direct the clerk to
draw the name of an alternate juror to take the place of a discharged juror. In addition, the court is to
instruct the jury to begin deliberations anew. The purpose of the Rule is to strike a balance between the
need for judicial economy and the fundamental right of defendants to a fair trial by jury. It is a last resort
mechanism to avoid a waste of time and expense inherent in a mistrial. (pp. 10-12)
2. The "unable to continue" language is to be strictly construed and must ordinarily be limited to
compelling circumstances that are exclusively personal to the juror in question. A trial court cannot
discharge a juror because the juror is at odds with the rest of the jury. The appropriate course when a juror
indicates that the jury is deadlocked is for the court to inquire whether further deliberation will likely result
in a verdict and, if not, the court should declare a mistrial. (pp. 12-15)
3. The trial court dismissed Juror No. 9 even though she stated that she understood her function, that
she was willing to abide by her oath, and that she was willing to apply the law. Although the juror stated
that she was going back and forth in her vote, she did not suggest that she wanted to vote for the same
outcome as the other jury members. The record also contains evidence that the circumstances leading to the
jury's and the juror's desire for discharge may have arisen from interactions in the jury room, indicating that
she held a different position from that of the other jurors. Thus, the court did not reasonably exercise its
discretion in removing Juror No. 9. (pp. 15-17)
4. The record on which a court may excuse a deliberating juror must reveal with greater clarity that a
juror cannot proceed with deliberations and fulfill the functions of a juror, particularly when the record
contains any suggestion that the problems regarding the juror stem from interactions with the other jurors
and not from circumstances personal to the juror. In this case, whether Juror No. 9's inability to decide the
case with the other jurors resulted from factors personal to her, from failure of the State to meet its burden
of proof, or from her disagreement with the other jurors was never established. (pp. 17-19)
5. Because of its conclusion that the trial court improperly discharged Juror No. 9, the Court need not
decide whether the jury had progressed too far in its deliberations to permit the substitution of an alternate
juror and whether the procedure the trial court employed in selecting the substitute juror was prejudicially
defective. However, it is noted that, in selecting substitute jurors, trial courts should follow the procedure
prescribed in Rule 1:8-2(d) to avoid the appearance of a preference for one alternate over the other.
Moreover, determining whether substitution can take place at a given point in the deliberations concerns not
only the length of time that the jury has deliberated but the effect that the progress the deliberations will
have on the reconstituted jury's ability truly to begin deliberations anew. (pp. 19-22)
Judgment of the Appellate Division is AFFIRMED.
CHIEF JUSTICE WILENTZ and JUSTICES CLIFFORD, HANDLER, POLLOCK, O'HERN and
GARIBALDI join in JUSTICE STEIN's opinion.
SUPREME COURT OF NEW JERSEY
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
RAFAEL VALENZUELA,
Defendant-Respondent.
Argued January 5, 1994 -- Decided July 13, 1994
On certification to the Superior Court,
Appellate Division, whose opinion is reported
at
262 N.J. Super. 392 (1993).
Carol M. Henderson, Deputy Attorney General,
argued the cause for appellant (Robert J. Del
Tufo, Attorney General of New Jersey,
attorney).
Cynthia N. McKee, Designated Counsel, argued
the cause for respondent (Zulima V. Farber,
Public Defender, attorney).
The opinion of the Court was delivered by
STEIN, J. In this appeal we consider whether the trial court properly exercised its discretion pursuant to Rule 1:8-2(d) in discharging a juror and substituting an alternate juror after the jury had begun deliberations. The reconstituted jury convicted defendant of second-degree sexual assault and acquitted him of fourth-degree theft. The Appellate Division reversed the conviction,
citing as errors the dismissal of a juror who was not clearly
unable to continue, the court's failure to choose by lot which
alternate juror would replace the dismissed juror, and the
substitution of a juror at a stage in the deliberations when it
appeared the other eleven jurors had reached agreement.
262 N.J. Super. 392, 398 (1993). The Appellate Division, concluding
that the cumulative weight of those errors warranted reversal,
remanded for a new trial. Id. at 400. We granted the State's
petition for certification,
133 N.J. 446 (1993).
A grand jury indicted defendant, Rafael Valenzuela, on charges of first-degree aggravated sexual assault and second-degree robbery stemming from his alleged rape of a young woman acquaintance who had agreed to accompany him to a Department of Motor Vehicles office to act as an interpreter. The trial progressed for three days before a fourteen-member jury panel. At the close of the State's case, the trial court, finding no evidence that force had been used during the alleged theft of $500 from the victim's coat pocket, reduced the robbery charge to the lesser-included offense of fourth-degree theft and also reduced the first-degree aggravated-sexual-assault charge to second-degree sexual assault. The defense rested on the third day of trial. After instructing the jury on the applicable law, the trial court
reduced the jury to twelve members by selecting by lot the names
of two jurors. The court designated those jurors, in the order
they were selected, as the first and second alternate jurors.
The jury left the courtroom to deliberate at 11:10 a.m. The
court retained the alternate jurors in a separate location,
stating, "You might be needed if somebody becomes ill on the
jury." Fifty minutes later the jury sent a note out to the court
to the effect that one member "doesn't want to be" a juror. The
court brought the jury out, determined that Juror Number 9 was
the reluctant juror, and then questioned Juror Number 9 out of
the presence of the other jury members.
THE COURT: Miss Pollack, do I take it
right that you don't want to participate?
MISS POLLACK: I just can't, can't make
an opinion on this case --
THE COURT: Well --
MISS POLLACK: -- Yes or no, you know.
Then -- they all are ganging up on me now.
THE COURT: I don't want to know --
MISS POLLACK: That's what --
THE COURT: Listen to me. I don't want
to hear from you what they are saying in
there. I don't want to know from you what
your position is on this case.
MISS POLLACK: No, I don't want to.
THE COURT: You don't want to?
MISS POLLACK: They have a feeling that
I'm not going to go with them or something,
is what they are saying.
THE COURT: Do you understand what your
function is?
MISS POLLACK: Yes.
THE COURT: Are you willing to try to
follow your oath or not?
MISS POLLACK: They just have an opinion
that they don't want me. That's what I can
see now, and I think I would be better if I
went -- I wouldn't have nothing in this.
THE COURT: When you're saying, they
have a thing that they don't want you, are
you saying that --
MISS POLLACK: I don't know what their
problem is, but that's what they are saying,
now.
THE COURT: Do you wish to continue as a
juror or not?
MISS POLLACK: No.
THE COURT: Are you telling me that you
are unable to continue because of some
personal feeling you have about the case?
MISS POLLACK: Yes.
THE COURT: Can you tell me why?
MISS POLLACK: No, I just can't make an
opinion, that's what I think.
THE COURT: You can't make a opinion?
MISS POLLACK: Opinion.
THE COURT: You can't decide it, you
mean?
MISS POLLACK: That's right.
The court then conferred with counsel. The prosecutor stated that he had observed the juror during trial talking to
herself and "acting * * * somewhat differently [from] anybody
else I've ever seen on a jury." The prosecutor also stated, "I
just feel she doesn't want to be with the rest of the jurors."
Defense counsel observed that Miss Pollack had been "attentive to
the case" and that her responses to the court's questioning
suggested "a bitter dispute between jurors." Defense counsel
also noted, referring to Rule 1:8-2(d), that the juror did not
seem "ill or, certainly, she's not dead or disabled and,
basically, I think she has to go there and make up her mind * * *
." The judge noted that on one occasion he had observed the
juror outside the courtroom "making some sounds to herself."
MISS POLLACK: Yes.
THE COURT: Pardon me?
MISS POLLACK: Yes.
THE COURT: Are you able to do that?
MISS POLLACK: I could do it, but they
are thinking -- they are thinking discounting
me. It's not going to go their way. They
THE COURT: But you understand the
nature of what you must do?
MISS POLLACK: Yes.
THE COURT: And are you willing to do
that?
MISS POLLACK: Yes.
THE COURT: Now, that doesn't mean it
could, necessarily, be easy or difficult in
there to talk about it with the other people,
but are you willing to abide by your oath?
MISS POLLACK: Yes.
THE COURT: Can you do that?
MISS POLLACK: Yes.
THE COURT: Now, before you told me that
you couldn't get an opinion about this.
MISS POLLACK: They just have a feeling
that I'm not going -- fit in with this case.
That's what they are telling me.
Following that colloquy, the court determined to leave Juror
Number 9 on the jury, stating that the record did not contain
enough information to warrant her removal. The court instructed
the jury to return to the jury room, to discuss the case, and to
apply the law to the facts in an effort to reach a decision.
Juror Number 9 does not understand the
process. She changes her plea every 10
seconds. She wants to vote however we want
to vote, but she is very confused. We have
stressed that she must vote the way she
believes. We request an alternate juror, as
it is felt that Juror Number 9 is not capable
of expressing herself.
The foreperson indicated that the note represented the opinion of
all the jurors. The court questioned Juror Number 9 out of the
presence of the jury:
THE COURT: Miss Pollack, I must speak
to you, now, about your rol[e] as a juror. I
am not going to ask you how you're voting
because I do not want to be told how you're
voting or how the other members of the jury
are voting.
MISS POLLACK: Yes.
THE COURT: But the jury, the other 11
members of the jury have indicated to me
their belief that you are having difficulty
knowing what you're doing in there.
MISS POLLACK: I don't think so.
THE COURT: You do not.
MISS POLLACK: I did, but everybody else
has a different opinion --
THE COURT: All right.
MISS POLLACK: On account of me. I
don't want it to be a mistrial, what they are
saying in there --
THE COURT: I take care of that.
MISS POLLACK: Yes.
At sidebar, defense counsel again referred to the court rule
for discharge of a juror, arguing that this juror did not fit the
criteria. He stated that the juror had responded firmly to
questions, that she had been clear in her answers, and that she
apparently had indicated to the court that she held a different
opinion from the other jury members. Defense counsel suggested
that the appropriate course would be to explain to the juror that
"she has a personal conviction," and that she must discuss the
case with the other jurors and try to make a determination with
them, but that ultimately "[s]he has to go according to her
mind." The prosecutor disagreed, concluding that the jury's note
and the juror's responses to the court's questioning indicated
not that the juror was voting differently from the other jurors,
but that she did not "understand the process" and could not
"function in the jury process," and, therefore, that the court
had sufficient cause to discharge her.
talking to herself during the same period of
time.
THE REPORTER: Yes, Judge.
THE COURT: Given all this information
and the lady's responses to me, it seems to
me, quite clearly now, that the lady is,
somewhat, bizarre. Intelligence, per se, is
not controlling, but her intelligence does
not seem to be overly acute. I don't think,
at this point in time, that she's able and
functional to know what she's doing to
discuss the case intelligently and to do her
function and her job.
The court dismissed the juror on its own motion, presumably
because the court considered her to be a juror "unable to
continue," under the language of Rule 1:8-2(d). The court
directed the juror who had been designated the first alternate to
take the discharged juror's place. The court instructed the
reconstituted jury that it must "begin * * * work anew" and that
it should not "take any preconceived notions about the case into
that room, but * * * begin again." Fifty-five minutes later the
jury returned with a verdict, finding defendant guilty of sexual
assault and not guilty of theft. The court later sentenced
defendant to ten years' imprisonment with a four-year period of
parole ineligibility.
failure to have the clerk select the substitute juror by lot, and
the substitution of an alternate juror after the remaining eleven
jurors had progressed in deliberations to a stage approaching
agreement on a verdict, the Appellate Division reversed
defendant's conviction and remanded for a new trial. Id. at 400.
Rule 1:8-2(d) governs the impaneling of additional jurors and the discharge and substitution of jurors. Concerning dismissal of a juror after deliberations have commenced, the Rule 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 a juror is
discharged by the court because he is ill or
otherwise unable 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.
The Rule attempts to strike a balance between the need for judicial economy, especially in the context of lengthy trials, and the fundamental right of defendants to a fair trial by jury. State v. Trent, 157 N.J. Super. 231, 238-39 (App. Div. 1978), rev'd on other grounds, 79 N.J. 251 (1979). The need for judicial economy became evident when the prior Rule regarding
impaneling of alternate jurors was in effect. Under that Rule
the practice was to dismiss the alternate jurors once the court
submitted the case to the jury. See Report of Supreme Court
Committee on Criminal Procedure,
95 N.J.L.J. 341, 356 (Apr. 13,
1972). Thus, if a juror could not complete deliberations due to
illness or some other reason, the court, barring acceptance of a
smaller jury by both parties, had to declare a mistrial. Ibid.
The Sub-Committee on Jury Deliberations of the Supreme Court
Committee on Criminal Procedure recommended in 1972 that the Rule
be amended to allow for the substitution of a juror after
deliberations had begun in cases in which a juror dies, becomes
ill, or is unable to perform the duties of a juror. This Court
followed that recommendation in amending Rule 1:8-2(d).
course of the deliberations." Trent, supra, 157 N.J. Super. at
239. Therefore, substitution of a juror under those
circumstances in most cases does not impair a defendant's right
to trial by a fair and impartial jury. Ibid.; see also
Commonwealth v. Connor,
467 N.E.2d 1340, 1346 (Mass. 1984)
(holding under rule similar to 1:8-2(d) that "good cause" for
discharge of juror includes only reasons personal to deliberating
juror, having nothing to do with case issues or with juror's
relationship with fellow jurors).
[T]he "unable to continue" language of the
rule must be strictly construed and must
ordinarily be limited 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 taint or a
substantive interference with the ultimate
course of the deliberations beyond that
necessarily implicit in the effect of new
personalities on group dynamics.
[Trent, supra, 157 N.J. Super. at 240.]
A trial court cannot discharge a juror merely because that
juror is one "whose position is at odds with the rest of the
jury." State v. Paige,
256 N.J. Super. 362, 380-81 (App. Div.),
certif. denied,
130 N.J. 17 (1992). See also Connor, supra, 467
N.E.
2d at 1345 ("Great care must be taken to ensure that a lone
dissenting juror is not permitted to evade his
responsibilities."). The appropriate course when a juror
indicates that the jury is deadlocked is to inquire of the jury
whether further deliberation will likely result in a verdict.
See State v. Hunt,
115 N.J. 330, 380 (1989). When the difference
of opinion between members of the jury is clearly intractable,
the trial court should not repeatedly send a dissenting juror
back into the jury room to deliberate, but rather should declare
a mistrial. See State v. Czachor,
82 N.J. 392, 407 (1980)
(approving American Bar Association recommendations stating that
trial court should not repeatedly instruct jury reporting
definite deadlock to continue to deliberate after reasonable
period of deliberations and that court may discharge hung jury if
agreement does not appear reasonably probable); State v.
Vergilio,
261 N.J. Super. 648, 655 (App. Div. 1993) (holding that
returning distraught dissenting juror to jury room and
instructing jury to continue deliberations was unduly coercive).
"nervous," "too emotional," felt like she "want[ed] to spit up,"
and could not decide the case because she identified the
defendant with her own son. Id. at 235-36. Although the juror
had indicated that she might feel better in the morning, the
trial court excused the juror, stating "'she is physically and
emotionally disturbed and * * * I don't think she can properly
and adequately carry out her duties as a juror * * * .'" Id. at
236-37. The Appellate Division noted that dispersing the jury
for the evening might have been "a prudent course to follow," id.
at 241, but nonetheless upheld the conviction, determining that
the trial court reasonably had exercised its discretion in
removing the juror. The court observed that the juror's
incapacity was attributable only to personal characteristics of
that juror, and that the record did not demonstrate that "her
distress or its cause tainted or infected the jury as a whole * *
* ." Id. at 240. We reversed the Appellate Division's judgment
on the basis that the trial court had failed to charge the
reconstituted jury that it must begin deliberations anew. Trent,
supra, 79 N.J. at 257. Indeed, the trial court had instructed
the substituted juror to "'continue with deliberations with the
other jurors.'" Id. at 253. Because we reversed on that ground,
we did not reach the issue whether the trial court had mistakenly
exercised its discretion in discharging the juror. Ibid.
nervous and his nervousness was affecting his judgment. In
response to the trial court's questioning, the juror stated that
he did not think that he could render a fair verdict. The trial
court discharged the juror and substituted an alternate. 76 N.J.
at 401-02. We determined that that decision was reasonable,
stating that "good cause appeared when the juror in question
stated that in his then nervous and emotional condition, he did
not think he could render a fair verdict." Id. at 406-07. See
also People v. Collins,
552 P.2d 742 (Cal. 1976) (upholding under
rule similar to 1:8-2(d) dismissal of juror who stated that she
could not perform her duty because she was too emotional), cert.
denied,
429 U.S. 1077,
97 S. Ct. 820,
50 L. Ed.2d 796 (1977).
We recognized in Miller, however, that "[t]he rule is
discretionary with the trial court because a situation might
arise where it would be unwise to utilize this procedure." 76
N.J. at 407.
The trial court excused Juror Number 9 because it believed she was unable to function in the jury room. The court stated that it based its conclusion on the jury's second note, the juror's demeanor and responses to the court's questioning, and the observations the court and others had made of the juror's behavior. The court made clear that it considered the juror to be "somewhat bizarre" and not of "overly acute" intelligence.
The court dismissed the juror despite her statements that
she understood her function, that she was willing to abide by her
oath, and that she was willing and able to apply the law. As the
Appellate Division noted, the juror never stated "that she was
unable to render a fair verdict." 262 N.J. Super. at 399. The
jury's second note indicated both that the juror constantly
changed her mind and that she wanted to vote the same way that
the other members of the jury were voting. However, although the
juror herself stated that she was going back and forth in her
vote, she did not suggest that she wanted to vote for the same
outcome as the other jury members.
and discuss the case by stating, "I did, but everybody else has a
different opinion * * * [o]n account of me. I don't want it to
be a mistrial, what they are saying in there * * * ."
establish meritorious reason for discharge but also eliminate
improper reasons).
[i]t is not always clear whether a juror
cannot vote because of illness or an
intractable inability to understand the
function of a juror, or because the juror is
honestly indecisive in weighing the evidence
against the State's heavy burden of proof.
Where there is any doubt, before considering
whether to discharge such a juror as
hopelessly dysfunctional, a trial judge
should have the jury resume deliberations
after reminding them of the State's burden of
proof and carefully explaining that jurors
should vote "guilty" or "not guilty"
depending on whether they are convinced
beyond a reasonable doubt that the State has
proven all the elements of the offense being
considered.
Thus, we hold that a juror cannot be discharged as "unable to
continue" 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.
If a court suspects that the problems with the juror are due to
interactions with other jurors, the court should instruct the
jury to resume deliberations. If the jury remains unable to
return a verdict, the court should determine whether further
deliberation would allow the jury to reach a verdict. If the
jury indicates intractable deadlock, the court should declare a
mistrial.
Because this record does not clearly indicate that the juror
was "unable to continue," and based on implications in the record
that the juror's problems related not only to personal
circumstances but also to factors arising from the juror's
interactions with the other jurors, we hold that the trial court
abused its discretion in discharging Juror Number 9. We
emphasize as we did in Trent, supra, that the fundamental right
of fair and impartial jury deliberations must be zealously
protected. 79 N.J. at 257. That protection is not ensured when
a court discharges a juror under circumstances that bring into
question the integrity of the jury's deliberative function.
Because we conclude that the court improperly discharged Juror Number 9, we need not decide whether the jury had progressed too far in its deliberations to permit the substitution of an alternate juror and whether the procedure the court employed in selecting the substitute juror was prejudicially defective. We discuss briefly, however, the law applicable to those issues to emphasize the cautious approach that courts must take in substituting a juror on a deliberating jury to ensure that the integrity of jury deliberations is preserved. With regard to the timing of juror substitutions, we reiterate that there may be a point at which the jury
In Corsaro, the jury had returned a partial verdict and had
reconvened to deliberate on further charges. The trial court,
with the acquiescence of the defendants, discharged a juror who
appeared intoxicated and substituted an alternate juror. The
court then instructed the jury to begin deliberations anew on the
remaining charges. We held that a juror could not be substituted
after a jury has returned a partial verdict because at that point
"the deliberative process has progressed for such a length of
time or to such a degree that * * * [a] new juror is likely to be
confronted with closed or closing minds." Id. at 352.
juror be substituted or replaced." 76 N.J. at 407. We found
that the defendant there had not been prejudiced by the
substitution of a juror after the jury had been deliberating for
about an hour and a quarter. Id. at 401, 407; see also Lipsky,
supra,
164 N.J. Super. 39 (finding substitution after almost five
hours of deliberation not abuse of discretion, but reversing
conviction on court's failure to instruct jury to begin
deliberations anew). The concern in determining whether
substitution can take place at a given point in the deliberations
is not merely the length of time that the jury has deliberated
but the effect that the progress in deliberations will have on
the reconstituted jury's ability truly to begin deliberations
anew. See Corsaro, supra, 107 N.J. at 354.
concluded that the conjectural dangers of substitution should not militate against the decision to permit it. Accordingly, the rule
was drawn in permissive terms, authorizing
the court in its discretion first to retain
the alternate jurors and second to substitute
an alternate, by lot, for a juror unable to
continue.
[Pressler, Current N.J. Court Rules, comment
5 on R. 1:8-2(d) (1993).]
Contrary to Rule 1:8-2(d), the trial court did not select
the substitute juror by lot, but instructed the designated first
alternate to take the discharged juror's place. The court's
original designation of the alternates was by lot and the court's
regular practice may have been to substitute the designated first
alternate if the need for substitution arose. The record
contains no evidence of the court's usual practice nor any
evidence that the court's substitution was improperly motivated.
Because of our disposition, we need not decide whether that
procedural defect standing alone could have sufficiently
prejudiced defendant's rights to warrant reversal of his
conviction. We emphasize, however, that in selecting substitute
jurors, trial courts should follow the procedure prescribed by
Rule 1:8-2(d) to avoid the appearance of a preference for one
alternate over the other.
The judgment of the Appellate Division is affirmed. Chief Justice Wilentz and Justices Clifford, Handler, Pollock, O'Hern, and Garibaldi join in this opinion.
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