                                                      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
interest of brevity, portions of any opinion may not have been summarized.)

                           State of New Jersey v. Khalid Mohammed (A-70-14) (075901)

Argued April 11, 2016 -- Decided July 25, 2016

SOLOMON, J., writing for a unanimous Court.

         In this appeal, the Court considers the proper procedures a trial court should follow when faced with an
allegation that a juror was inattentive during part of the trial.

          Following a bar fight and an altercation with police in Asbury Park, defendant was charged with third-
degree aggravated assault upon a police officer and resisting arrest. The case proceeded to trial. After issuing
lengthy pretrial instructions, the prosecutor informed the court that Juror 14 appeared to be sleeping during the
instructions. The judge stated that the instructions would be repeated and the parties would return to the issue the
following week. When the parties returned to court, there was no further discussion about the allegedly sleeping
juror. The judge also did not repeat his preliminary instructions in their entirety, although he provided a summary at
the conclusion of each day of trial.

          Prior to deliberations, the judge instructed the jury in four parts, with the first three parts presented in the
morning and the fourth part presented after lunch. After the fourth part, defense counsel informed the judge that she
noticed Juror 14 sleeping during a substantive portion of the charge. The judge explained that he had observed that
the juror had his eyes closed off and on during the trial, but he seemed to be paying attention. Noting that some
people pay better attention with their eyes closed, the judge found that the juror could continue. Defense counsel
made no further statement or request.

          Defendant was found guilty of the lesser-included offense of simple assault and resisting arrest by use or
threat of physical force. He moved for a new trial, in part because Juror 14 was sleeping during the final charge.
During argument on the motion, defense counsel asserted that she heard audible snoring. The judge noted that
counsel never asked that Juror 14 be questioned or that an alternate be put in his place. Moreover, the judge
disputed counsel’s assertion that the juror was snoring, reiterating that some people concentrate better with their
eyes closed. Based on his experience and observations, the judge determined that the juror was not inattentive, and
further noted that, during deliberations, the jury was provided with a written copy of the charge.

          Defendant appealed. The Appellate Division affirmed, pointing to the judge’s specific findings and
counsel’s failure to make a request to replace Juror 14. However, the panel noted that it would have been prudent
for the parties to have requested, and the judge to have agreed, to question the juror. The panel rejected the judge’s
suggestion that giving the jurors copies of the jury instructions for reference during deliberations could cure a juror’s
inattention during the charge. The Court granted defendant’s petition for certification. 222 N.J. 311 (2015).

HELD: If Juror 14 was inattentive, it was only during inconsequential pretrial instructions and was neither
prejudicial nor clearly capable of producing an unjust result. Because the trial court’s finding that Juror 14 was
attentive during the jury charge, which is a consequential portion of the trial, was adequately supported by the
judge’s personal observations, no further inquiry was required.

1. Defendants have a constitutional right to an impartial and mentally competent tribunal. Jury irregularity,
including sleeping, may violate this right if it results in prejudice. There is little New Jersey case law addressing the
ramifications of sleeping jurors, but the Appellate Division has held that a court must investigate allegations that a
juror has been sleeping. However, the Appellate Division has suggested, and a federal court of appeals has held,
that if the judge personally observes that the juror is awake, a voir dire is unnecessary. If, on the other hand, a court
finds that the irregularity of a sleeping juror may exist, the next step is to determine whether the juror’s inattention
was prejudicial to the defendant and, therefore, capable of producing an unjust result. To that end, the Appellate
Division has found that the important question is when the juror was inattentive, asking not just whether
inattentiveness occurred, but whether it occurred during a critical portion of the trial. Once a judge determines,

                                                            1
based on his observations and individual voir dire of the juror, that the juror was sleeping, the Appellate Division
has instructed that remedial action is required. (pp. 14-17)

2. The Court first determines if defendant waived the issue of whether he was denied his right to be tried by
competent jurors. Although defendant failed to identify the allegedly substantive portion of the final charge the
juror may have missed, he objected immediately after the charge ended. While defendant did not renew the
objection until after the jury returned the verdict, there is no basis to conclude that this was premeditated or strategic.
Thus, defendant did not waive the issue, and the Court reviews it for harmful error, asking if any error was clearly
capable of producing an unjust result. (pp. 18-19)

3. The first allegation that Juror 14 was inattentive arose during pretrial instructions, which neither party argues was
a consequential part of the trial. Although individual voir dire of Juror 14 would have been appropriate, the Court
concludes that, on this record, a juror sleeping during the time and circumstances alleged could not have prejudiced
defendant, did not deprive him of his right to mentally competent jurors, and was not clearly capable of producing
an unjust result. The second allegation involved the final jury charge. Based upon his own observations, the judge
found that the juror was awake during the charge. This conclusion, based upon personal observations explained
adequately on the record, ends the inquiry as to the second allegation. If Juror 14 was inattentive, it was only during
inconsequential pretrial instructions, not during important testimony or instructions on the law. (pp. 19-22)

4. The Court rejects the trial judge’s suggestion that the written instructions option in Rule 1:8-8 might cure a
deficiency in the oral instructions. Should a court find that a juror was not alert during the final charge, which is a
consequential part of the trial, written instructions alone are insufficient to cure the inattention and resulting
prejudice. (pp. 22)

5. In sum, the Court holds going forward that the trial court and counsel have a duty to be certain that a defendant’s
trial is heard by an alert and attentive jury. Where the trial judge notices that a juror is inattentive, the judge will
have broad discretion to determine the appropriate level of investigation and corrective action required. Where a
party alleges that a juror is inattentive, the judge should adequately explain on the record any personal observations
regarding the juror’s attentiveness. A finding of attentiveness based on these personal observations generally ends
the inquiry and will be reviewed to determine whether the finding is adequately supported in the record. If a judge
does not personally observe a juror’s attentiveness, the judge should conduct an individual voir dire of the juror. If,
following voir dire, a determination is made that the juror was inattentive during an inconsequential part of the trial,
the judge will have broad discretion to determine the appropriate corrective action. A finding that the pertinent
portion of the trial was inconsequential will be reviewed for harmful error. On the other hand, if a determination is
made that the juror was inattentive during a consequential part of the trial, the judge must take appropriate corrective
action, such as replaying a recording or videotape, rereading a portion of the jury charge, or excusing the juror,
among other steps. (pp. 22-24)

         The judgment of the Appellate Division is AFFIRMED.

       CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, PATTERSON, and FERNANDEZ-
VINA; and JUDGE CUFF (temporarily assigned) join in JUSTICE SOLOMON’s opinion.




                                                            2
                                     SUPREME COURT OF NEW JERSEY
                                       A-70 September Term 2014
                                                075901

STATE OF NEW JERSEY,

    Plaintiff-Respondent,

         v.

KHALID MOHAMMED,

    Defendant-Appellant.


         Argued April 11, 2016 – Decided July 25, 2016

         On certification to the Superior Court,
         Appellate Division.

         Stefan Van Jura, Deputy Public Defender II,
         argued the cause for appellant (Joseph E.
         Krakora, Public Defender, attorney; Mr. Van
         Jura, of counsel, Mr. Van Jura and Glenn D.
         Kassman, Designated Counsel, on the briefs).

         Paul H. Heinzel, Special Deputy Attorney
         General/Acting Assistant Prosecutor, argued
         the cause for respondent (Christopher J.
         Gramiccioni, Acting Monmouth County
         Prosecutor, attorney).

         Claudia Joy Demitro, Deputy Attorney
         General, argued the cause for amicus curiae
         Attorney General of New Jersey (Robert
         Lougy, Acting Attorney General, attorney).


    JUSTICE SOLOMON delivered the opinion of the Court.

    In this appeal, we consider, for the first time, the proper

procedures a trial court should follow when faced with an

allegation that a juror was inattentive during part of the


                               1
trial.   Here, the prosecutor claimed that a juror was sleeping

during the judge’s pretrial instructions, which neither party

identified as a consequential phase of the trial.   The judge did

not make a finding with respect to that allegation but said that

he would repeat the instructions.1   At the end of the trial,

without requesting that any action be taken by the judge,

defense counsel alleged that the same juror was sleeping during

an unidentified part of the judge’s final charge.   The judge

found, based upon personal observations, that the juror was

awake during the final charge and, therefore, took no action.

     After the jury convicted defendant of simple assault and

resisting arrest, defendant moved for a new trial claiming that

the juror’s inattention could have affected the outcome.    The

trial court denied the motion for a new trial, and the Appellate

Division affirmed.

     We affirm the Appellate Division.   We also provide guidance

in this area that, going forward: When it is alleged that a

juror was inattentive during a consequential part of the trial,

if the trial court concludes, based upon personal observations

explained adequately on the record, that the juror was alert,




1 The record reflects that the parties did not request and the
trial court did not repeat its preliminary instructions in their
entirety. At the end of the trial day, the judge cautioned
jurors against investigating, discussing, or communicating with
others about the case.
                                2
the inquiry ends.    If the judge did not observe the juror’s

attentiveness, the judge must conduct individual voir dire of

the juror; if that voir dire leads to any conclusion other than

that the juror was attentive and alert, the judge must take

appropriate corrective action.

                                 I.

                                 A.

    The discrete issue raised by defendant in this appeal does

not warrant a lengthy discussion of the facts surrounding the

incident leading to defendant’s arrest and conviction.    We

provide only a brief summary for context, followed by an account

of pertinent portions of the trial and jury charge.

    In the early morning hours of April 22, 2010, police

officers responded to a call reporting a bar fight in Asbury

Park.   As the officers approached the scene, they observed

approximately thirty people fighting in front of Syanxis bar,

including defendant Khalid Mohammed, his brother, and his

brother’s fiancée.   When the responding officers attempted to

arrest defendant’s brother and his fiancée, defendant tried to

intervene and had an altercation with James Lao, an officer who

had ordered defendant to back away.    During that altercation,

defendant pushed, punched, and slammed Officer Lao to the

pavement.   The officer sustained a bruised elbow, and defendant

suffered a broken ankle.

                                 3
    As a result of that encounter, a Monmouth County Grand Jury

indicted defendant on one count of third-degree aggravated

assault upon a police officer, N.J.S.A. 2C:12-1(b)(5)(a), and

one count of third-degree resisting arrest, N.J.S.A. 2C:29-

2(a)(3).

    The case proceeded to trial.     At the end of jury selection,

the trial judge delivered lengthy pretrial instructions that

included discussion of the roles of the judge and the jury,

basic trial procedure, and the prohibition against discussing or

investigating the case outside of the courtroom.   After the

judge dismissed the jurors, the prosecutor informed the court

that Juror 14 appeared to be sleeping during the instructions.

The judge responded that he was not certain whether the juror

heard the entire instruction but said he would “have no problem

in asking him about it.”    The judge also suggested that the

attorneys stand closer to the jurors when addressing them to

ensure that the jurors remained alert. The judge added that the

instruction the juror may have slept through “will be repeated

in any event” and that he is “required to watch the jurors at

all times.”   The discussion ended with the judge stating that he

and the parties would return to the issue when they came back to

court the following week.

    When the parties returned to court, there was no further

discussion about the allegedly sleeping juror and the jury was

                                 4
sworn.   The judge also did not repeat his preliminary

instructions in their entirety.       However, at the end of each day

of trial, he summarized the preliminary instructions as follows:

               Please remember my instructions. Do not
          discuss the case with each other.      Do not
          discuss the case with family and friends. Do
          not have any electronic communication with
          anyone about any person, place, or thing
          connected to this particular trial. I do not
          know whether there will be any media coverage.
          Do not read anything about it in the media.
          Do not have anyone seek out on your behalf
          anything about it in the media about the
          trial. Do not go and visit the scene of what’s
          been described in testimony. Do not use any
          sort of electronic means, Mapquest, Google
          Earth, or the like.    You are not to do any
          sort of investigation. You are not here as
          investigators.2

     After the evidence was presented by both parties, the judge

instructed the jury in four parts: (1) the general principles of

criminal law -- the nature of an indictment, the burden of

proof, and the roles of the judge and jury; (2) what is and is

not evidence and the difference between direct and

circumstantial evidence; (3) the law specific to this case and

the crimes alleged; and (4) the rules for jury deliberation.

The judge presented the first three parts in the morning and the

fourth part following lunch.   In the afternoon, after the final

jury instruction on rules for jury deliberation, defense counsel




2 The instructions given at the end of each day were not
identical but used substantially the same language.
                                  5
stated, “I just wanted to make a record that I did notice juror

number 14 sleeping again during the substantive charge.”

Counsel did not specify when the juror was purportedly sleeping.

The trial judge described his own personal observations of the

juror and concluded that the juror could continue.

         He’s been having his eyes closed on and off
         throughout the trial. He’s just –- sometimes
         people –- he goes in and out, but he seems to
         be paying attention. He opens his eyes. It’s
         not that he’s been continuously asleep. Some
         people close their eyes to pay better
         attention, especially during my charge.    So
         your observation is noted. It doesn’t appear
         that he’s unable to continue to serve.

Defense counsel thanked the court and made no further statement

or request.

    During deliberations, the jury, which had been provided

with a written copy of the charge for reference, submitted

several questions that the court answered.   Thereafter, on the

morning of the second day of deliberations, the jury returned a

verdict finding defendant guilty of simple assault, a lesser-

included offense of third-degree aggravated assault upon a

police officer, N.J.S.A. 2C:12-1(a), and resisting arrest by use

or threat of physical force.   Defendant moved for a new trial,

pursuant to Rule 3:20-1, arguing that a new trial was “required

in the interest of justice” because the jury’s verdict was




                                6
internally inconsistent3 and because Juror 14 was “sleeping”

during the time the court gave its final charge to the jury.

The court heard oral argument on the motion.

     During oral argument, defense counsel stressed that she

brought the problem of Juror 14 “dozing off” to the court’s

attention, stating “it was evident that the juror was not just

listening with his eyes closed,” and, for the first time, she

stated that she heard “very audible snoring.”   Citing State v.

Reevey, 159 N.J. Super. 130 (App. Div.), certif. denied, 79 N.J.

471 (1978), defense counsel argued that the court’s failure to

“at a minimum, question the juror” was “reversible error.”

     The judge noted that defendant never asked that Juror 14 be

questioned or “an alternate put in [his] place.” The judge also

disputed defendant’s factual account and said that he never

heard the juror snoring.   The judge stated, as he had

previously, that “[s]ome people can actually concentrate better”

with their eyes closed, and reasoned as follows:

               The bottom line is the way the seats are
          constructed, unless you’re a thoroughbred race
          horse, if you fall asleep, you slump down in
          the chair. If you’re in the second row, your
          head hits the wall or you fall forward . . .
          . [T]here was no indication, first of all,
          that there was any snoring and, second, that
          there was any body posture that was out of the

3 Defense counsel claimed that defendant could not have known
that Officer Lao was a police officer for the purpose of the
resisting arrest charge and not for the assault charge. The
judge rejected this claim, which is not part of this appeal.
                                7
          ordinary other than closed eyes.

    Relying upon his experience and observations, the judge

determined that the juror was not inattentive.    As further

support for his decision to deny a new trial, the judge “note[d]

that the jurors were provided with a written” copy of the charge

during deliberations.

                                  B.

    Defendant appealed, claiming that the trial judge’s failure

“to conduct an inquiry into . . . whether Juror Number 14 was

sleeping during the court’s instruction as to the substantive

law requires a reversal of defendant’s convictions or, in the

alternative, a remand for an evidentiary hearing.”    Citing State

v. R.D., 169 N.J. 551, 559 (2001), the Appellate Division

applied an abuse of discretion standard and affirmed the trial

court.   It noted, however, that it would have been “prudent” for

the parties to have requested, and the judge to have agreed, to

question the juror.     The panel, citing Panko v. Flintkote Co., 7

N.J. 55, 61 (1951), observed that the trial judge, defense

counsel, and the State had a responsibility to “ensure that the

trial was fair and the jurors had the mental and physical

capabilities to assess the evidence and apply the legal

principles as instructed by the court.”

    The panel distinguished this case from Reevey, supra,

because the judge here made specific findings and counsel failed

                                  8
to make a request to replace Juror 14.   The panel concluded that

this case more closely resembled State v. Scherzer, 301 N.J.

Super. 363 (App. Div.), certif. denied, 151 N.J. 466 (1997),

where the court suggested remedies for the problem of a sleeping

juror and “defense counsel requested that nothing be done.”

    The panel further rejected the trial judge’s suggestion

that giving the jurors copies of the jury instructions for

reference during deliberations could cure a juror’s inattention

during the jury charge.   It held that although Rule 1:8-8(b)(2)

directs trial judges to strive to make legal instructions

available to the jury during deliberations, the copies

distributed under the Rule are not, according to the panel, a

substitute for oral instructions.

    We granted defendant’s petition for certification.      State

v. Mohammed, 222 N.J. 311 (2015).

                               II.

    Defendant frames the trial court’s failure to voir dire the

allegedly sleeping juror as a due process violation -- denying

his “right to be tried by competent jurors,” which “‘implies a

tribunal both impartial and mentally competent to afford a

hearing.’”   Tanner v. United States, 483 U.S. 107, 134, 107 S.

Ct. 2739, 2754-55, 97 L. Ed. 2d 90, 115 (1987) (Marshall, J.,

dissenting) (quoting Jordan v. Massachusetts, 225 U.S. 167, 176,



                                9
32 S. Ct. 651, 652, 56 L. Ed. 1038, 1042 (1912)).4   Defendant

claims that the failure of the trial court to question Juror 14

deprived defendant of his guaranteed right to “mentally

competent” jurors and, therefore, amounted to an abuse of

discretion.

     Defendant bases his argument on the following observations:

(1) counsel informed the court twice that Juror 14 was sleeping;

(2) there is evidence the juror slept through the judge’s

instructions; (3) the judge found the juror was awake, even

though he made contrary observations; and (4) the judge failed

to voir dire the juror.   Defendant therefore contends that the

judge’s finding that the juror was awake is not supported by the

record, and that allowing the juror to participate in

deliberations was prejudicial.

     Defendant relies primarily on two cases -- Reevey, supra,

159 N.J. Super. at 134, and State v. Burks, 208 N.J. Super. 595,

611-12 (App. Div. 1986) -- in which the Appellate Division held

that the trial court should determine whether a juror was

inattentive and, if so, consider proper corrective measures.

First, defendant argues that Reevey, supra, held that the trial

court had the authority to remove a sleeping juror and,



4 The majority opinion in Tanner cites the same language from
Jordan. See Tanner, 483 U.S. 126, 107 S. Ct. at 2751, 97 L. Ed.
2d at 110.

                                 10
therefore, should have conducted a hearing to determine whether

the juror was actually asleep.   159 N.J. Super. at 134.    Second,

defendant argues that, in Burks, supra, 208 N.J. Super. at 612,

the Appellate Division noted that “the judge should have

ascertained if the jurors were sleeping and if so considered

proper corrective measures.”   Defendant contends that his case

is “strikingly similar” to Reevey because the judge here did not

conduct a hearing but instead determined that the juror was not

sleeping based on the judge’s own “cursory observations.”

     Defendant also argues that the court was wrong to suggest

that, even if a juror had slept during the final charge, giving

the jury a written copy of the charge could cure that defect.

Relying on State v. Lindsey, 245 N.J. Super. 466, 474 (App. Div.

1991), defendant contends that it is inappropriate to allow

jurors to rely on the written instructions because there is no

guarantee they will be read by jurors in the “objective fashion”

the judge would use and because the defendant and his lawyer

would not be present to object to errors in a jury-room reading.5




5 In his supplemental brief, defendant also raises an ineffective
assistance of counsel claim. Specifically, defendant alleges
that, if this Court finds that his counsel was required to ask
for a specific remedy, the failure to do so constitutes
ineffective assistance. We decline to address that argument
because it is better suited for review on post-conviction relief
and not direct appeal. See State v. Hess, 207 N.J. 123, 145
(2011); State v. Preciose, 129 N.J. 451, 460 (1992); State v.
Dixon, 125 N.J. 223, 262 (1991).
                                 11
    The State acknowledges that, under Reevey, supra, “[w]hen

it appears that a juror may have been sleeping, the trial judge

should determine whether a juror has been sleeping, and if so,

take corrective action.”   159 N.J. Super. at 133-34.    However,

the State asserts that defendant bears the burden of

demonstrating a juror was sleeping, missed important parts of

the trial, and there was resultant prejudice.

    The State argues that this case is more like State v.

Glover, 230 N.J. Super. 333, 343 (App. Div. 1988), certif.

denied, 121 N.J. 621 (1990), than Reevey and Burks.     The State

contends that, as in Glover, the trial judge here addressed

defendant’s concern about the juror and made a factual finding

based on his own observations.   The court did not summarily

dismiss defendant’s claim, as the trial judges did in Reevey and

Burks.   The State also asserts that even when a juror is found

by the court to be sleeping, the judge can decline to order a

new trial if the defendant does not ask for curative measures or

if the juror was sleeping during an inconsequential part of the

trial.   Moreover, defendant in this case failed to point to a

specific part of the jury charge that the juror allegedly slept

through and, because “defendant cannot demonstrate that he was

in any way prejudiced,” this Court should not grant relief.

      The State further claims that defendant waived his right

to inquiry and corrective action because defense counsel did not

                                 12
object to the way the trial court handled the accusation that a

juror was sleeping.   The State compares defense counsel’s

inaction in this case to the defense attorney in Scherzer,

supra, 301 N.J. Super. at 491, who “requested that nothing be

done.”

    Lastly, the State argues that “[w]hile it may be that a

written charge is not necessarily a ‘cure’ to the issue, it most

certainly is relevant to a reviewing court’s assessment of the

issue” because it “undermines the notion . . . that it was

impossible for the juror to deliberate.”   The State

distinguishes Lindsey, supra, 245 N.J. Super. at 474, because in

that case the jury instructions were “totally inadequate,” but

here defendant has not challenged the instructions themselves.

    Amicus Curiae, the Office of the Attorney General (AG),

expands upon the arguments the State raises.   While the AG also

acknowledges Appellate Division precedent that requires trial

judges to “take ‘action’ when counsel alerts them to sleeping

jurors,” it notes that this Court has not spoken on what action

trial courts should take and urges the Court to give trial

judges the responsibility to investigate charges of juror

misconduct along with the discretion to determine how to

investigate and whether the misconduct will prejudice the

defendant.   Moreover, the AG emphasizes, once a jury has

rendered a verdict, the defendant should bear a heavy burden to

                                13
reverse it -- showing both that the juror was sleeping and that

the defendant suffered prejudice as a result.

    Finally, the AG asserts that once defense counsel tells the

trial court that a juror was sleeping and the court finds the

juror was not, defendant’s failure to ask for further action

waives the issue.     See Rule 1:7-2 (requiring, for issue to be

preserved for appeal, that a party “make known to the court

specifically the action which the party desires the court to

take or the party’s objection to the action taken and the

grounds therefor”).

                                 III.

                                  A.

    Under the United States Constitution, defendants have a due

process right to an “impartial and mentally competent” tribunal.

Jordan, supra, 225 U.S. at 176, 32 S. Ct. at 652, 56 L. Ed. at

1042 (citing U.S. Const. amend. XIV); see also Tanner, supra,

483 U.S. at 126-27, 107 S. Ct. at 2751, 97 L. Ed. 2d at 110-11

(citing quoted language from Jordan, but holding that evidence

of intoxicated and sleeping jurors, discovered post-verdict, did

not entitle defendant to an evidentiary hearing).    Jury

“irregularity,” including sleeping, may violate a defendant’s

federal and state constitutional rights to a fair tribunal if it

results in prejudice.    Scherzer, supra, 301 N.J. Super. at 486-

87 (citing U.S. Const. amend. XI; N.J. Const. art. I, ¶10).

                                  14
    There is little New Jersey case law dealing with the

ramifications of jurors determined to have slept through part of

a trial.   However, the Appellate Division has held that, when a

party alleges that a juror has been sleeping, a court must

investigate that allegation.     Reevey, supra, 159 N.J. Super. at

133-34; Burks, supra, 208 N.J. Super. at 611-12.     In Reevey,

supra, defense counsel told the trial judge that a juror was

sleeping during the summations and jury charge.     159 N.J. Super.

at 133.    Defense counsel “suggest[e]d that [the juror] be one of

the alternates.”    Ibid.   The judge made no finding about whether

the juror was sleeping, but instead responded that he could not

dismiss that juror because he believed he did not have the

authority to do so.     Ibid.   The appellate panel remanded for a

hearing to determine whether the juror was, in fact, sleeping.

Id. at 135.   The panel stated that, “at the very least under the

circumstances of this case the trial judge should have conducted

a hearing and questioned this juror as to whether she was in

fact dozing or sleeping, or whether she was listening to the

summations and the charges but merely had her eyes closed.”       Id.

at 134.

    In Burks, supra, the Appellate Division reversed on other

grounds but, as in Reevey, noted its disapproval of the trial

judge’s summary dismissal of the defendant’s allegations that

jurors were sleeping.    208 N.J. Super. at 611-12 (“Certainly the

                                   15
judge should have ascertained if the jurors were sleeping and if

so considered proper corrective measures.”).

    However, the Appellate Division has suggested, and a

federal court of appeals has held, that when it is alleged that

a juror was asleep and the judge personally observed that the

juror was awake, a voir dire need not be conducted.   See United

States v. Holder, 652 F.2d 449, 451 (5th Cir. 1981) (“We discern

no abuse of discretion in the trial court’s failure to question

the juror who allegedly fell asleep.   The court’s remarks

demonstrate that the court had observed the juror in question

and that it concluded that the juror was not in fact asleep.”);

Glover, supra, 230 N.J. Super. at 343 (finding other issues

“[o]f greater importance,” but noting “the judge did not appear

to be of the opinion that the juror had been sleeping”).

    Once a court finds that the “irregularity” of a sleeping

juror may exist, the next step is to determine whether the

juror’s inattention was prejudicial to the defendant and,

therefore, capable of producing an unjust result.   Courts in

other jurisdictions apply a presumption of prejudice when a

juror has slept through an important part of the trial.      See,

e.g., People v. Evans, 710 P.2d 1167, 1168 (Colo. App. 1985)

(closing argument); Commonwealth v. McGhee, 25 N.E.3d 251, 257

(Mass. 2015) (testimony of material witness); State v. Turner,

521 N.W.2d 148, 151 (Wis. Ct. App. 1994) (same).

                               16
     Similarly, the Appellate Division has found that the

question of when the juror was inattentive is more important

than whether the juror was inattentive -- “[o]f greater

importance on the issue is the fact that the question concerning

the juror’s attentiveness came at a point in the trial where

there was no critical evidence being presented.”   Glover, supra,

230 N.J. Super. at 343.   Additionally, the panel found that the

testimony the juror may have missed “was not in any way critical

to defendant’s defense, but rather, was foundation[al] testimony

offered by the State and was itself cumulative.”   Ibid.   The

panel held that the failure to inquire further “was clearly

harmless beyond a reasonable doubt.”   Ibid.   The Reevey panel

did not reach that issue but noted “the requirement in the cases

from other jurisdictions of a finding of prejudice.”    Reevey,

supra, 159 N.J. Super. at 134 (citing 88 A.L.R. 2d. 1275

(1963)).

     Once a judge concludes, based on his observations and

individual voir dire of a juror, that the juror was sleeping,

the Appellate Division has instructed that a court must take

remedial action.   See Burks, supra, 208 N.J. Super. at 612

(“Certainly the judge should have ascertained if the jurors were

sleeping and if so considered proper corrective measures.”).6


6 The panel in Reevey, supra, suggested making the sleeping juror
an alternate. 159 N.J. Super. at 134-135 (citing R. 1:8-1(d)).
                                17
                                  IV.

                                  A.

    To resolve this appeal, we must first determine if

defendant waived the issue of whether he was denied his “right

to be tried by competent jurors.”       Tanner, supra, 483 U.S. at

134, 107 S. Ct. at 2754-55, 97 L. Ed. 2d at 115 (Marshall, J.,

dissenting).    Some constitutional claims may be waived when the

defendant decides, for strategic reasons, not to raise the claim

at trial.    State v. Williams, 219 N.J. 89, 98 (2014), cert.

denied, ___ U.S. ___, 135 S. Ct. 1537, 191 L. Ed. 2d 565 (2015).

In Williams, defense counsel explicitly declined to object when

the State offered a forensic pathologist to testify based on

another doctor’s autopsy report.       Id. at 100.   On appeal, this

Court held that the defendant waived his Confrontation Clause

argument when he allowed the State to call a substitute witness

to testify against him, finding that the defendant made a

strategic decision to allow the autopsy report to come in.        Id.

at 99-101.     Similarly in Scherzer, supra, the Appellate Division

held that when the defendant refused the judge’s offer to take

curative measures, it was not error for the judge to honor that

refusal.    301 N.J. Super. at 491.

    Although defendant here identified the portion of the

charge the juror might have missed as “substantive,” he failed

to identify the specific portion of the charge at issue.

                                  18
Nevertheless, unlike the defendants in Williams and Scherzer,

this defendant immediately objected after the jury charge ended.

While defendant did not renew the objection until after the jury

returned the verdict, we find no basis to conclude this was

premeditated or strategic, and we hold that defendant did not

waive the issue.

    When a party preserves an issue for appeal on the record,

this Court reviews for harmful error.   See State v. Lazo, 209

N.J. 9, 12 (2012); State v. R.B., 183 N.J. 308, 330 (2005);

State v. Macon, 57 N.J. 325, 337-38 (1971).   “[T]he question for

the appellate court [is] simply whether in all the circumstances

there [is] a reasonable doubt as to whether the error denied a

fair trial and a fair decision on the merits.”   Macon, supra, 57

N.J. at 338.   In such cases, the reviewing court asks whether

the error is “clearly capable of producing an unjust result.”

R. 2:10-2.

                                B.

    We turn next to the allegations that Juror 14 was sleeping.

The first allegation came from the prosecutor after the judge’s

pretrial instructions to the jury.   The judge did not make a

factual finding about whether the juror was sleeping, but stated

he would repeat the general instructions and would inquire

further when the jury returned the following trial day.

However, the judge did not repeat the preliminary instructions

                                19
in their entirety or conduct a further inquiry, and neither

party requested that he do so.

    This first allegation that Juror 14 was inattentive came

during pretrial instructions, which neither party argues was a

consequential part of the trial.      Furthermore, as stated

previously, the trial judge summarized his preliminary

instructions to the jury at the end of each trial day.         Although

individual voir dire of Juror 14 at this time would have been

appropriate, we conclude that, on the record before us, a juror

sleeping during the time and circumstances alleged could not

have caused any prejudice to defendant, did not deprive

defendant of his due process right to “mentally competent”

jurors, Jordan, supra, 225 U.S. at 176, 32 S. Ct. at 652, 56 L.

Ed. at 1042, and was not clearly “capable of producing an unjust

result,” R. 2:10-2.

    The second allegation that Juror 14 was sleeping was not

brought to the attention of the trial court until after the

judge completed the final jury charge, which extended over a

lunch break.   Defense counsel did not specify during which part

of the final charge the juror was sleeping; however the

allegation was advanced after the fourth part of the final jury

charge, regarding the rules for jury deliberation.      After this

second allegation, the judge made factual findings, based upon

his own observations, that the juror was awake.      The judge

                                 20
concluded that the juror had “been having his eyes closed on and

off throughout the trial . . . but he seems to be paying

attention.   He opens his eyes. . . .    It doesn’t appear that

he’s unable to continue to serve.”

    We conclude that, as to the second allegation that Juror 14

was sleeping at some time during the final jury charge, it was

not an abuse of discretion for the judge to rely on his own

observations, which he explained on the record, and not make

further inquiry.    Indeed, we hold that when the trial court

concludes, based upon personal observations explained adequately

on the record, that the juror was attentive, the inquiry ends.

    A reviewing court must accept the factual findings of a

trial court that are “supported by sufficient credible evidence

in the record.”    State v. Gamble, 218 N.J. 412, 424 (2014)

(citing State v. Elders, 192 N.J. 224, 243 (2007)); see also

State v. Johnson, 42 N.J. 146, 161 (1964) (stating that

deference should be afforded to trial judge’s findings when they

“are substantially influenced by his [or her] opportunity to

hear and see the witnesses and to have the ‘feel’ of the case,

which a reviewing court cannot enjoy”).

    The trial court’s finding here is adequately supported by

the judge’s personal observations.      Because the trial judge

sufficiently supported his factual finding that Juror 14 was

attentive during the court’s final jury charge, it follows that,

                                 21
if in fact Juror 14 was inattentive, it was only during

procedural pretrial instructions, not during important testimony

or instructions on the law.

    Finally, as did the Appellate Division, we reject the trial

judge’s suggestion that the written instruction option in Rule

1:8-8 might cure a deficiency in the oral instruction.     We hold

that should a court find that a juror was not alert during the

final charge to the jury -- a consequential part of the trial --

written instructions alone are insufficient to cure the juror’s

inattention and the resulting prejudice.     See Lindsey, supra,

245 N.J. Super. at 473-74 (observing “a strong view” in survey

of persuasive authority “that the judge should read all

instructions to the jurors, not rely on jurors to read them, or

the foreperson to recite them to the jury”).     Thus, the copies

distributed under the Rule were not a substitute for oral

instructions or individual voir dire to determine whether a

juror was alert and attentive.

     In sum, we hold going forward that the duty belongs to the

court, as well as to counsel, to be certain that the defendant’s

trial is heard by an alert and attentive jury.     See Reevey,

supra, 159 N.J. Super. at 133-34.     Instances of juror

inattentiveness at trial will be brought to the court’s

attention in one of two ways: either the court will personally

observe that a juror’s attention is diverted or otherwise in

                                 22
question, or one of the parties will bring the issue to judge’s

attention.

    Where the trial judge notices that a juror is inattentive,

the judge will have broad discretion to determine the

appropriate level of investigation and corrective action that

must be taken.   However, when a party alleges that a juror is

inattentive, the trial judge should explain adequately on the

record the judge’s personal observations, if any, regarding the

juror’s attentiveness.   A finding based on the trial court’s

personal observations that the juror was alert and attentive

generally ends the inquiry and will be reviewed to determine

whether the finding is adequately supported in the record.       If

the judge did not personally observe the juror, the judge should

conduct an individual voir dire to determine if the juror was

inattentive, and make appropriate findings.

    If, following voir dire, the trial court concludes that a

juror was inattentive during an inconsequential part of the

trial, the trial court will have broad discretion to determine

the corrective action that must be taken.     A finding by the

trial court that the pertinent portion of the trial is

inconsequential will be reviewed under a “harmful error”

standard -- whether the error is “clearly capable of producing

an unjust result.”   R. 2:10-2.



                                  23
    If, following voir dire, the trial court concludes that a

juror was inattentive during a consequential part of the trial,

the judge must take appropriate corrective action, such as

replaying a tape recording or videotape, rereading a portion of

the jury charge, or excusing the juror, among other steps.

                                  V.

    For the reasons set forth above, the judgment of the

Appellate Division is affirmed.



     CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, PATTERSON,
and FERNANDEZ-VINA; and JUDGE CUFF (temporarily assigned) join
in JUSTICE SOLOMON’s opinion.




                                  24
