                 NOT FOR PUBLICATION WITHOUT THE
                APPROVAL OF THE APPELLATE DIVISION

                                      SUPERIOR COURT OF NEW JERSEY
                                      APPELLATE DIVISION
                                      DOCKET NO. A-0879-10T2

STATE OF NEW JERSEY,

     Plaintiff-Respondent,                APPROVED FOR PUBLICATION

                                                  May 2, 2014
v.
                                             APPELLATE DIVISION
WEDPENS DORSAINVIL,

     Defendant-Appellant.

_______________________________________

           Submitted October 2, 2013 – Decided May 2, 2014

           Before Judges Fuentes, Fasciale and Haas.

           On appeal from Superior Court of New Jersey,
           Law Division, Union County, Indictment No.
           07-11-1010.

           Joseph E. Krakora, Public Defender, attorney
           for appellant (Karen E. Truncale, Assistant
           Deputy Public Defender, of counsel and on
           the brief).

           John J. Hoffman, Acting Attorney General,
           attorney   for   respondent   (Jennifer E.
           Kmieciak,   Deputy   Attorney  General, of
           counsel and on the brief).

           The opinion of the court was delivered by

FUENTES, P.J.A.D.

     Defendant Wedpens Dorsainvil was indicted by a Union County

Grand Jury and charged with first degree murder of Jamillah

Payne,   N.J.S.A.   2C:11-3a(1),   (2);   first   degree   conspiracy   to
commit    murder,    N.J.S.A.   2C:5-2     and    N.J.S.A.     2C:11-3;    first

degree attempted murder of Khalid Walker,1 N.J.S.A. 2C:5-1 and

N.J.S.A.    2C:11-3(c);    third   degree        unlawful    possession    of    a

weapon,    N.J.S.A.     2C:39-5(b);   second       degree    possession    of    a

weapon    for   an   unlawful   purpose,    N.J.S.A.        2C:39-4(a);    third

degree conspiracy to distribute cocaine and/or heroin, N.J.S.A.

2C:5-2, N.J.S.A. 2C:35-5(a)(1), and N.J.S.A. 2C:35-5(b)(3); and

second degree possession of a firearm during the commission of a

drug-related offense, N.J.S.A. 2C:39-4.1(a).2

     Tried before a jury over a period of eight days, defendant

was found guilty of first degree conspiracy to murder Payne, 3

second degree aggravated assault of Walker, as a lesser-included

offense    of   first     degree   attempted        murder,    second     degree

possession of a firearm for an unlawful purpose, second degree

1
  The indictment initially listed Jamillah Payne as the victim of
this crime. The court amended the indictment once the error was
detected.
2
   Phillipe Barthelus was charged as a co-defendant with
committing the same crimes. Barthelus was tried separately and
convicted on all of the charges.    The trial court sentenced
Barthelus to an aggregate term of forty-five years, with an
eighty-five percent period of parole ineligibility and five
years of parole supervisions as required under the No Early
Release Act (NERA), N.J.S.A. 2C:43-7.2.      We affirmed the
conviction and sentence on direct appeal in an unpublished
opinion. State v. Barthelus, No. A-5012-10 (App. Div. Oct. 11,
2013).
3
  Despite this finding of culpability on the conspiracy charge,
the jury found defendant not guilty of murdering Payne.



                                      2                                 A-0879-10T2
possession of a firearm during the commission of drug-related

offense, third degree unlawful possession of a weapon, and third

degree conspiracy to distribute cocaine and/or heroin.

      The trial court sentenced defendant to an aggregate term of

forty-five     years,     subject     to    the       eighty-five       percent       parole

ineligibility      restriction      and     subsequent         five-year       period      of

parole   supervision      mandated     by       NERA.     We     have    opted       not   to

describe in detail the analysis employed by the trial court to

arrive   at    this   aggregate       sentence         because    we    are        satisfied

defendant's conviction cannot stand.

      Our     decision    to    set    aside          defendant's       conviction         is

predicated on two interconnected events.                       The first concerns a

physical      altercation      between          two    deliberating       jurors        that

occurred during jury deliberations.                     Physical violence between

jurors   during     deliberations          is    toxic    to    the     environment        of

rational discourse we associate with the deliberative process

and   fundamentally       inconsistent           with    any     notion       of     ordered

liberty.       A   jury   verdict     contaminated          by    such    violence         is

inherently      unreliable.           The        trial    court        thus        committed

reversible error in denying defendant's motion for mistrial.

      Independent of this error, the coercive measures employed

by the trial judge in an attempt to preserve the integrity of

the deliberative process were not only ineffective but, in our




                                            3                                       A-0879-10T2
view, exacerbated the menacing environment caused by the violent

episode between the two jurors.                No reasonable juror can be

expected to perform his or her duties as impartial judges of the

evidence      adduced   at    trial   under    the     sweeping    court-ordered

civility code imposed by the trial court in this case.

       We derive the following facts from the record developed

before the court, including the evidence presented to the jury

at trial.

                                        I

                         CORE OF OPERATIVE FACTS

                                        A

       From   the    State's   perspective,       this    case    is   about     the

dangers associated with the business of illicit drug trafficking

at    the   retail   level.     Jamillah      Payne,     the   nineteen-year-old

woman whom the State alleged was shot and killed by defendant

and then thrown out of her own fourth-floor apartment window by

his co-defendant, was actually part of defendant's own "crew" or

drug distribution operation.          Payne allowed defendant to use her

apartment as a storage and local distribution site and assisted

him in packaging the drugs for street-level distribution.                         As

the   prosecutor     acknowledged     in    his   opening      statement   to    the

jury, "Jamillah Payne was part of the drug conspiracy."




                                        4                                  A-0879-10T2
       In order to provide the jury with an explanation for the

events that led to Payne's death, the State called as a witness

a man who had been incarcerated with defendant in the Union

County jail in 2007 before this case went to              trial.4     This

witness also knew Payne socially, independent of defendant, as

"his    ex-girlfriend's   cousin."       According   to   this   witness,

defendant told him he was upset with Payne because she was using

the apartment as her residence with her son and for other social

activities unrelated to the apartment's dedicated purpose as a

place to store, package, and distribute illicit narcotics.

       More importantly as it relates to this case, the witness

said defendant also believed Payne was "hanging around with,

basically, her gang member friends, Bloods,[5] if you want to call


4
   In   response  to   the  prosecutor's  questions  on   direct
examination, the witness acknowledged he had previously pled
guilty to first degree distribution of heroin and cocaine.    He
was sentenced to a term of six years with two years of parole
ineligibility, which is a sentence within the range of a second
degree offense, in exchange for agreeing to testify "truthfully"
as a witness for the State in this case.
5
  The "Bloods" is a criminal gang described by the New Jersey
State Police as a franchise with numerous smaller gangs taking
the "brand name" of the gang and adopting the gang's symbols,
ideology and terminology. The extent to which Bloods "sets"
cooperate with each other or respect territory, members or
financial resources varies widely, with the result that open
competition and conflict between Bloods "sets" (or among local
factions of the same set) is not uncommon.     See New Jersey
Department of Law & Public Safety Division of State Police,
Intelligence Section, Gangs in New Jersey: Municipal Law
                                                   (continued)


                                     5                           A-0879-10T2
it."    The witness claimed defendant was particularly troubled by

Payne's association with Khalid Walker, who defendant believed

may have previously broken into the apartment with other gang

members "and stolen some money and some drugs."        Defendant told

the witness he wanted to change the locks in the apartment "to

avoid all situations."      In response to the prosecutor's question

as to whether defendant "actually . . . beg[a]n to change the

locks in the apartment at some point," the witness testified:

"Yes . . . [t]he same night all hell broke loose, if you want to

call it Jamillah [Payne's] death, let's say."

       Thus, under the State's theory of events, Payne's untimely

death was the result of conflicts between local drug "crews"

operating in the same apartment building and sharing the same

territory.       Payne unintentionally set in motion the chain of

events that caused her death by socializing with rival gang

members    and    raising   defendant's   suspicions   by   using    the

apartment as an actual residence, not just a drug warehouse.

       The first link of this chain was forged when Payne phoned

W.S.6 on the evening of July 13, 2006, and asked him to come to



(continued)
Enforcement Response to the 2010 NJSP Survey 26, 52 (2010),
http://www.njsp.org/info/pdf/gangs_in_nj_2010.pdf.
6
  We use initials in referring to witnesses and other individuals
related to this case to protect their privacy.



                                   6                           A-0879-10T2
her fourth-floor apartment.      W.S. was a member of the "Bloods,"

and operated a rival illicit drug crew in an apartment located

on the third floor in the same building.            He testified Payne

sounded "disturbed" when she spoke to him on the phone that

evening.     According to W.S., when he arrived, Payne, defendant,

and four other men were already in the apartment.7         Payne did not

respond to W.S.'s inquiries about what prompted her to ask him

to come to the apartment.        W.S. testified that at some point

shortly after his arrival, defendant went into the kitchen area

of the apartment and quickly returned with a handgun in his

hand.     Defendant then fired one shot into the floor.

     As a reflexive action, presumably based on an instinctive

reaction or as a last desperate measure to avoid being shot,

W.S. jumped out of one of the windows of Payne's fourth-floor

apartment;    he   fractured   his   pelvis,   punctured   a   lung,   and

fractured a hand.      W.S. heard three more gunshots while on the

ground.     He thereafter saw Payne plunge from one of the windows

of the apartment.     We note W.S.'s perception of events may have

also been impaired by other factors in addition to his injuries.




7
  W.S. gave inconsistent accounts about what he saw when he first
arrived at Payne's apartment.    Initially, he did not identify
defendant as being inside the apartment that night.      He later
explained that he lied because he was "afraid for [his] life."



                                     7                           A-0879-10T2
Specifically,    W.S.   testified     he   was   under   the   influence    of

alcohol and illicit narcotics at the time.

    The State called as witnesses a number of other individuals

who were also in the apartment building on the night of the

shooting.   D.K. testified he saw Payne "hanging from a window,"

and saw Barthelus push Payne out of her apartment window.                   On

cross-examination, however, D.K. conceded to giving conflicting

accounts of what he saw regarding the incident.                  Although he

testified at trial to seeing Barthelus's face as he pushed Payne

out of the window, he had previously stated he did not see

Barthelus's face that night and was only able to identify him by

the unique marks on his arms.

    M.M. was also a resident of the building where Payne had

her fourth-floor apartment.          M.M. testified to hearing multiple

gunshots, "loud noises and flashes, and a lot of commotion" on

the evening of July 13, 2006.          She saw a number of individuals

running   down   the    building's    fire   escape.      M.M.    identified

Barthelus as one of the individuals she saw run down the fire

escape and head toward her apartment.

                                      B

    Khalid Walker, a man identified by the State's jail house

informant as "a high ranking member" of the rival crew that

intended to move into the fourth-floor apartment, was inside




                                      8                              A-0879-10T2
Payne's apartment on the night of the shooting and was himself

shot     in   one   of    his    legs.          His   testimony     proved    to    be

problematic, however, because by the time this matter reached

trial,    Walker    had    recanted      his     previous   statements       and   was

unwilling to cooperate with the State.                 Making matters even more

difficult, Walker, who was at the time serving a sentence in

State    prison     on    an    unrelated       matter,   refused    to   wear     the

civilian attire provided to him by the State and insisted on

taking the stand as a witness wearing his inmate garb.

       Defense counsel did not object to Walker testifying while

wearing his inmate uniform; she believed Walker's attire would

likely undermine his credibility as a witness for the State

because it would provide the jury with visual evidence of his

past criminal transgressions.             After discussing the matter with

the attorneys in the case, the trial judge decided to permit

Walker to testify wearing prison garb.8




8
   In reaching this decision, the judge specifically noted State
v. Kuchera, 198 N.J. 482, 486 (2009), in which the Court held
that a prosecution witness who testifies in prison garb "likely
does not affect" the fairness of the trial "as a whole."
However, consistent with the reasons that animated the Court's
decision in State v. Artwell, 177 N.J. 526 (2003), "unless
otherwise permitted by the trial court in the exercise of its
discretion, witnesses in criminal cases -- both for the
prosecution and for the defense -- should not testify in prison
garb." Kuchera, supra, 198 N.J. at 486.



                                            9                                A-0879-10T2
     Despite this accommodation by the court, Walker refused to

testify.      The record reflects the judge explained to Walker the

consequences of his refusal to testify outside the presence of

the jury.     Specifically, the judge apprised Walker that he would

be   held     in    contempt,       remanded   to     the    county     jail    until

compliant, and the time spent in the county jail on the contempt

citation would not be credited to his unrelated State prison

sentence.     After this explanation, the prosecutor asked Walker a

series of basic questions to lay the foundation for his trial

testimony.        Walker's answers were either unresponsive or clearly

indicative of his continued refusal to testify.

     After further discussion with the attorneys, the judge once

again engaged Walker directly.             The judge again made clear the

consequences       of   his   behavior.        When    Walker    made    clear    his

willingness to remain defiant, the judge held him in contempt.

The judge again emphasized to Walker he would remain in the

county     jail    "until     you    testify    under       oath."      After    some

reflection and interaction with the judge, Walker acceded.

     Walker testified that on the night of the incident, he was

shot in the leg while he was in the bathroom talking on his cell

phone.      He did not know who shot him.             Police records show that

Walker stated individuals in the apartment were arguing about

drugs and that "Cam" (a nickname used for defendant) had shot




                                         10                                A-0879-10T2
him.    Walker also provided the police with a description of his

assailant.         At   trial,    Walker      testified      that    none     of     the

information he provided to the police in 2006 was correct and

claimed the police "coerced" him into giving a statement.                          After

considering    the      relevant       standards       and      applicable         legal

principles,9 the trial judge granted the State's motion to play

to the jury the videotaped statement Walker gave the police in

2006 as a prior inconsistent statement.

                                         C

       City of Elizabeth Police Officer William Deegan was one of

the officers who responded to the shooting incident that night.

Immediately    upon      his     arrival,     Deegan      saw    a   woman,        later

identified    as    Payne,     lying   dead    on   the    sidewalk.10        He     was

compelled to use force to enter apartment 4H because the door

was locked.        Deegan described the interior of apartment 4H as

"barren," with "blood on the right-hand side of the wall by the

9
  Applying the standards endorsed by the Court in State v. Brown,
138 N.J. 481, 543-45 (1994), the trial judge found Walker's
claim of a "lapse of memory" concerning the circumstances that
led the police investigators to videotape his statement was
feigned and tantamount to an implicit denial of his prior
statements. The judge thus admitted the videotaped statement as
a prior inconsistent statement under N.J.R.E. 803(a)(1)and (3).
See also State v. Gross, 121 N.J. 1, 10 (1990).
10
   The Union County medical examiner testified as an expert in
forensic pathology.   He classified Payne's cause of death as a
homicide. She died from a single gunshot wound to the chest.
Payne also had injuries consistent with being pistol whipped.



                                        11                                   A-0879-10T2
doorway."      He also entered apartment 4A, the next apartment over

from 4H, and observed that the screen looked forced in, and

there was blood on the counter, the door, and a set of keys he

found on the floor.

       Forensic    investigators     who       processed      the    crime    scene    in

Payne's apartment recovered three pieces of ballistic evidence

in the form of a spent casing found in the kitchen, and two

projectiles — one found in the bathroom and one in the "mid-

room."     Detective Gary Mayer was admitted by the court as an

expert in field of forensic ballistics.                       Mayer classified the

spent    projectiles     as    .38   caliber      and     the       spent    casing    as

discarded by a .25 caliber round.

       R.G., her daughter, and G., the child's father, resided in

another   fourth-floor        apartment    located       in    the    same   building.

All    three   were   home    on   the    night    of    July    13,    2006.         R.G.

testified that the child's father was addicted to heroin and had

used    heroin    that   night.      G.    had    been     incarcerated        on   past

occasions due to his addiction and related problems.

       R.G. found herself "in a really, really financial bind"

during the times G. had been detained.                   In a misguided attempt

to ameliorate her financial problems, R.G. worked for defendant

during her difficult times by holding his drugs in her apartment

and packaging the drugs for retail sale.                       Her involvement was




                                          12                                    A-0879-10T2
limited to handing the drugs to other "guys" who "would come or

call."

      According to R.G., defendant called her at approximately

ten o'clock in the evening on the night of the shooting and

asked her to open the door.         She heard "a lot of commotion" as

she approached to open the door.            She described defendant as

"very scattered, like, out of breath, like nerves, and he wanted

to come in, and he had blood on his shirt" when she opened the

door.    Defendant also "had guns with him."        When R.G. asked him

what happened, defendant allegedly responded: "I had to do it. I

had to do it."     Pressed by R.G. to elaborate on what he meant by

"it," defendant responded: "Milla," meaning Jamillah [Payne] . .

. .     I had to do it."       R.G. testified defendant told her Payne

"knew too much and that if it didn't go down that way that she

would    have   took   (sic)   everybody   down."   Defendant   was   not

visibly injured.

      R.G. gave defendant "a blue shirt and jeans" for a change

of clothes and "discarded" what he was wearing.          R.G. also saw

defendant "discard" two guns he placed on her kitchen table by

wrapping them in a garbage bag and placing them inside R.G.'s

garbage can.      She threw the garbage bags away on her way to a

restaurant.     R.G. gave a statement to police on June 6, 2007,




                                     13                         A-0879-10T2
and   identified      defendant      as    the      person     who   had    come   to    her

apartment on the night of July 13, 2006.

      Defendant also called S.W. on the night of the shooting.

S.W. had known defendant for approximately six years and knew he

kept drugs at Payne's apartment. S.W., as a witness for the

State, said defendant told her to go to his house and "get rid

of anything that didn't belong there."                        She removed his Social

Security card and identification documents from his home.

      S.W. and defendant bought a Jeep Cherokee from a used car

lot early the next morning.                S.W. put the title to the car in

her name.     After buying some "stuff for the car" and getting a

tune-up, defendant, S.W., Barthelus, and two other individuals

drove out of New Jersey on their way to Georgia.                            According to

S.W., defendant did not have any extra clothes with him, and the

other passengers did not have big suitcases.

      On the morning of July 15, 2006, South Carolina Police

Officer Brock Horton stopped a 1998 Jeep Cherokee with temporary

New Jersey plates on Interstate 95.                     The vehicle was travelling

at approximately ninety-two miles per hour, which was above the

local   speed       limit.     The    parties         stipulated       at    trial      that

defendant     was    a   passenger        in    the     vehicle      and   intentionally

misidentified himself as "Ken Mathews."                         The driver and the

other   men    in    the     car   were        unable    to    provide      Horton      with




                                               14                                  A-0879-10T2
appropriate identification.     Horton identified defendant as a

passenger in the vehicle he stopped.      Co-defendant Barthelus was

also in the car at the time of the stop.

                                 II

                       JURY DELIBERATIONS

     After the alternate jurors were selected and segregated,

the jury began deliberating sometime in the afternoon of July 8,

2009.   The court received the first note or question from the

jury later that afternoon.    Although the record does not reflect

any other communication from the jury before this one, the trial

judge marked this note "C-10."11      As read into the record by the

judge, the jury asked for

          clarification regarding Page 45 of the
          charge.    Does this page, act of a co-
          conspirator, apply to only the conspiracy to
          commit the murder of Jamillah Payne charge
          but does Page 45 also apply to the other
          charges, including the murder charge?

The record before us shows the judge responded to the jury's

query in C-10 without first consulting with the attorneys to

11
   Following the customary practice of identifying written
communications from the jury as "C" exhibits, C-10 implies there
were nine other previous notes or questions from the jury that
were not marked into evidence or otherwise identified for the
record. The quality of appellate review depends upon a complete
and accurate record of the proceedings before the trial court.
The trial judge is responsible to ensure that all written
communications from the jury are properly identified and
preserved for appellate review.




                                 15                         A-0879-10T2
obtain their input and determine whether they had any objections

to the manner the court responded to the question.

     The next communication from the jury, marked C-11, was also

sent on the afternoon of the first day of deliberations.                  As

read into the record by the judge, C-11 stated:

           "According to Page 45,[12] if a person is
           legally accountable for the conduct of
           another person" -- then they are saying,
           "including murder" -- that is a reference to
           my prior instruction to them, "when he's
           engaged in a conspiracy, does this mean the
           person is accountable or guilty of murder"?

     In contrast to the manner in which the judge proceeded in

responding to the question raised in C-10, the record shows the

judge ultimately responded to the question in C-11 after he

solicited comments and suggestions from the attorneys outside

the presence of the jury and considered their concerns.            Because

it was almost 4:00 p.m. by the time the jurors' question was

addressed, the judge decided to excuse the jury for the day.

The judge instructed the jurors not to discuss the case with

anyone   and   not   to   resume   deliberations   until   they   were   all

together the following morning at nine o'clock.




12
   As authorized by Rule 1:8-8(a), the judge provided the jury
with copies of the legal instructions and permitted the jurors
to take copies of the instructions with them to the jury room
during deliberations.



                                     16                            A-0879-10T2
    Although technically the second day of deliberations, July

9, 2009 was actually the first time the jurors had a full day to

deliberate.     Shortly    after   the    jury   began   deliberating   that

morning, the judge acknowledged the receipt of a note from Juror

16, which the court marked C-13.          As read by the judge, the note

indicated Juror 16 had "scheduled vacation for 7/10/09.                 So I

would be grateful if I can be excused from the jury."               Because

the attorneys were not yet present, the judge told Juror 16 he

would discuss the issue with the lawyers and directed him to

return to the jury room and resume deliberations until otherwise

instructed by the court.

    Defense counsel was the first attorney to comment on this

issue.   She noted that Juror 16 did not mention anything about a

possible vacation conflict during voir dire.             Both the judge and

the prosecutor concurred with defense counsel on this point. The

prosecutor noted, however, that based on what was said to the

prospective jurors during voir dire about the possible length of

the trial, it was reasonable for Juror 16 to have expected the

trial to have ended the previous week.            The judge nevertheless

emphasized that it was clear from the manner in which the case

progressed    that   the   case   would   continue   beyond   the   previous

week.




                                     17                             A-0879-10T2
       The     judge   was    particularly         concerned       about      Juror    16's

ability to consider the evidence carefully and fairly.                              As the

judge noted, "[s]uppose he says, 'I'm leaving.                         I have a prepaid

vacation with my whole family and I should be home packing,

doing    this,    that.        I     can't    concentrate,         I     can't    focus.'"

Without objection from counsel, the judge brought Juror 16 back

to the courtroom to inquire further about his vacation plans.

       In response to the judge's request to explain "a little

more," Juror 16 said: "I'm going away on vacation tomorrow . . .

[to    the]    Bahamas."       The    judge       then    asked    the    juror    whether

"that,    in    any    way,   interfere       with       your   deliberating       today?"

Juror 16 answered: "No."             The judge nevertheless persisted:

               THE COURT: But I want to make clear what is
               in that question, and that is, you are going
               to be able to stay focused and concentrate
               and not, in any way, feel rushed?

               JUROR [16]:     No.

After conferring with counsel at sidebar, the judge directed

Juror 16 to return to the jury room and stated: "[W]e'll deal

with it in the afternoon, if necessary."

                           Violence In The Jury Room

       At 2:27 p.m. on July 9, 2009, the judge received another

written communication from the jury.                     We pause here to note that

the record reflects the judge did not discuss the jury's note

with    the    attorneys      before    deciding         to     take   this      course   of



                                             18                                    A-0879-10T2
action.    The judge brought the jury into the courtroom and made

the following statement:

           THE COURT: I'm going to read the note[13] you
           sent me for the benefit of the alternates.
           The note reads, "Your Honor, at this point
           the jury is hopelessly deadlocked. The jury
           is finding it impossible to make further
           progress to make a unanimous decision on any
           Count."

           I'm, basically, going to ask you to go in
           and try again. I would -- I'm going to read
           to you from Page 71 and 72 of the jury
           instructions.

           [(Emphasis added).]

     The   judge   then   reread   to    the   jury   the   section   of    the

standard   model   charge   on   "deliberations,"     which,   inter     alia,

admonishes each juror to consider the evidence impartially and

deliberate "with a view to reaching an agreement, if you can do

so without violence to individual judgment."            After reading this

two-paragraph long statement, the judge addressed the jury as

follows:

           So what I'm asking you to do is go back into
           the jury room, reexamine your positions,
           listen to what the other jurors have to say,
           and give it another try.    All right?   I'm


13
   This note from the jury announcing the inability to reach a
unanimous verdict was not identified by the judge with the
customary "C" exhibit designation. The failure to identify for
the record a written communication from the jury is not a
trivial oversight.   This kind of omission needlessly makes the
appellate process more difficult and time consuming.



                                    19                                A-0879-10T2
           asking you deliberating jurors to go back in
           the jury room.

The entire event took three minutes, including the time consumed

by   the   judge   reading   the   jury's   note    announcing    it    was

"hopelessly deadlocked."

     After   the   jury   left   the   courtroom,   the   judge   asked    a

Sheriff's Officer the following questions:

           THE COURT: Sergeant, I want you to describe
           for the record what you observed, what you
           heard, and what happened.

           THE SHERIFF'S OFFICER: There was a knock on
           the   door.    Officer   Karlick  (Phonetic)
           entered the jury room ahead of me.         I
           believe one of the jurors -- I'm not sure
           who it was -- handed him a note.[14]   There
           was a heated argument between two jurors. I
           asked them to please just sit down, calm
           down. The argument escalated.

           One of the jurors, I believe it was the
           young lady -- one of the jurors sitting
           outside wanted to go for a cigarette.     It
           sounded like a good idea because she was one
           of the parties involved in this argument.

           In the best interests -- in the interests of
           all these women, I told Officer Karlick to
           take them for a cigarette, and then the
           other jurors sat down.

           It was a heated, heated argument.        They were
           both standing up.


14
  Because the trial court did not mark this note as "C" exhibit,
nor read what it said into the record, we are unable to
determine its significance.




                                   20                             A-0879-10T2
         THE COURT: This is the note that I have.      We
         don't know who wrote it.[15]

         THE SHERIFF'S OFFICER:       The two jurors are
         still sitting outside.

         THE COURT: Have those two jurors go back in.

         [(Emphasis added).]

     All twelve jurors returned to the jury room without any

instructions from the court as to whether they should resume

deliberations.   At this point, the judge addressed the attorneys

on the record about how he planned to respond to the report of a

"heated argument" between two deliberating jurors.

         THE COURT: I propose the following: Bring
         the jurors out, tell them that I want them
         to fully deliberate and fully discuss any
         and all issues that they think are to be
         discussed, but they are to treat each other
         with respect and courtesy, and send them
         back to continue deliberating.

         Anybody want to be heard on that?

         I'm also -- I've also told the Sheriff's
         Officers that they are not to go into the
         jury room to collect a note, or something
         like that, unless they come to me, first.

         [DEFENSE COUNSEL]:    Yes, Judge.

         THE   COURT:    My    proposal   acceptable   to
         everybody?

         [PROSECUTOR]:   Yes, your Honor.

15
   Again we are compelled to highlight the court's failure to
identify this "note" as a "C" exhibit with a corresponding
number.



                                 21                         A-0879-10T2
            [DEFENSE COUNSEL]:    Does the Court -- the
            Court is not going to inquire as to who
            wrote the note, or it doesn't matter?

            THE COURT:    I wasn't -- well, you know,
            there was a heated discussion going on and
            -- I wasn't going to inquire because, you
            know, I'm concerned about inquiring into the
            deliberative process and what people are
            thinking about . . . but I'm willing to
            listen to suggestions to the contrary, but
            my feeling is what they need to be told is
            they should fully discuss everything that
            they think needs to be discussed here, but
            they should treat each other with respect
            and courtesy, and listen to what everyone
            has to say, and in a respectful manner, and
            proceed in that kind of way.

            [DEFENSE COUNSEL]: Your Honor, I would only
            ask -- I know the Court did it before -- is
            the Court inclined to give the modified
            Allen[16] charge, again?

            THE COURT:   They have not come back -- you
            know, first of all, they have it in the
            charge, I charged it to them originally.
            They have the written document.   I referred
            it to them again, and I read it to them.
            I'm not sure that is the issue at this point
            in time.

            [DEFENSE COUNSEL]:       Okay.

            [(Emphasis added).]

     In response to the judge's question, the Sheriff's Officer

indicated   that   the    argument    appeared    to   involve    a   personal

disagreement    between    the   jurors      "rather   than   a   substantive


16
  Allen v. United States, 164 U.S. 492, 17 S. Ct. 154, 41 L. Ed.
528 (1896).



                                      22                              A-0879-10T2
discussion about the issues of the trial."                        The judge did not

ask    the    Officer       to     elaborate     on     this      characterization.

Following this interaction with the Sheriff's Officer, the judge

brought the jury back to the courtroom, had them line "up along

the    back[,]"     and    again    instructed    them       on    the   need     to    be

respectful to one another.             The judge emphasized that this did

not mean "you can't strongly disagree, but you need to treat

each other in a respectful and courteous way."                     The record shows

in was 3:36 p.m. when the jury returned to deliberate.

       Sometime thereafter, the jury sent out a note (again not

marked as a "C" exhibit), which read: "Your Honor, we would like

to stop today at 4:30 [p.m.]."            This prompted the judge to bring

to    the   attorneys'     attention    the     need    to     address    Juror     16's

vacation plans.           However, as the judge himself noted, he was

distracted     by    the    "argument"        between    the      two    deliberating

jurors, who the judge identified for the record as Jurors 7 and

8.     With the consent of the attorneys, the judge decided to

create a record of what the Sheriff's Officer actually saw and

heard concerning the "heated argument" between these two jurors.

             THE   COURT:   [Addressing               the      Sheriff's
             Officer] Were you there.

             THE SHERIFF'S OFFICER:           I was there.

             THE COURT: Maybe I don't need him.




                                         23                                     A-0879-10T2
         THE SHERIFF'S OFFICER: Officer Karlick,
         Sheriff's Department. Loud knocking on the
         jury door.

         THE COURT: This is after the note[17] came?

         THE SHERIFF'S OFFICER: Correct. Less than a
         minute later a lot of knocking on the door.
         We go in.       An argument between three
         parties, separated the parties, brought
         Juror Number 7 outside and --

         THE COURT:   When you say "arguing" --

         THE SHERIFF'S OFFICER: Verbally.      Juror
         Number 7 said somebody tried to take her in
         the bathroom and wanted to fight her in the
         bathroom -- 8, sorry.

         At that time we separated the parties,
         brought Juror Number 8 out, and everybody
         else on the jury was getting along, so we
         shut the door and left them.

         THE COURT:   All right.

         THE SHERIFF'S OFFICER: I'm      sure     of   the
         numbers of the other jurors.

         THE COURT: Now, suppose -- let's say [Juror
         16]   says  he   can't deliberate  tomorrow
         because he's leaving -- let's say he has
         prepaid vacation. Right?

         THE SHERIFF'S OFFICER:   Judge, this Officer
         -- I believe Officer Swick should address
         both parties present about what happened.

         THE COURT:    Is anybody talking to the lady
         outside?




17
  We infer the "note" mentioned by the judge here is the note
announcing the jury was "hopelessly deadlocked."



                               24                            A-0879-10T2
THE SHERIFF'S OFFICER: She is sitting there
by herself.

THE COURT:   Go ahead.

THE SHERIFF'S OFFICER: I was the first
person in the back and when I got there they
were separated. And then the lady, I don't
know what juror [number] she is, I guess 8,
was the one outside.

THE COURT: I think she is Number 8, but we
will find out in a minute.

THE SHERIFF'S OFFICER: She said that she
slapped her and then the lady, I guess -- I
don't know. What lady in the pink shirt?

THE COURT:       Juror   Number   8   said   somebody
slapped her.

THE SHERIFF'S OFFICER: The juror with the
pink shirt slapped her.

THE COURT:     Is that a man or a woman?

THE SHERIFF'S OFFICER: That would be a
woman. She was involved in the first thing
that happened.  This was with a different
juror.

So when she said she slapped her she went
back in to try to get back in her face,
calling her a liar, and that's when Officer
Karlick took the lady in the pink and I took
her outside, and we separated her.

THE COURT: I'm going to ask Juror Number 8 -
- I'll bring her in and ask her what
happened.

But before I get to that, supposing [Juror
16] says he can't deliberate tomorrow? Then
what?




                         25                             A-0879-10T2
[DEFENSE COUNSEL]:   Your Honor, if [Juror
16] says he can't deliberate tomorrow, given
what has transpired in the course of this
day, I would submit that I don't think the
Court could submit -- or substitute a juror
in.

THE COURT: I might have to tell [Juror 16]
he has to move his trip.

[DEFENSE COUNSEL]:    The problem that -- I
think that has arisen now, I think the Court
would have to inquire of Juror Number 8. I
think that they have created, within the
jury room, a very hostile and volatile
situation   because  I   would  just  submit
whatever incident occurred before -- Juror
Number 1 and Juror Number 8 were the two
smokers and they just had to leave.

When I was in chambers with yourself you
said you were going to come out.   I didn't
make it from the door over here and you
heard the loud banging on the doors and the
officers ran to the back.

When the door was opened you could see the
people like, here, at the door.      I don't
know what took place, but clearly there is a
volatile situation, and the banging on the
door   wasn't  like   a  knock,  it   was  a
significant amount of banging like, "We need
somebody in here right away."

I'm concerned right now with the composition
of -- the jury is already, I think, may be
compromised and they may not be able to
focus because I think there is a volatile
situation that is occurring in that jury
room.

THE COURT:   We don't know what is going on
in there because I have not asked anybody
yet.   I've been reluctant, to the extent
that I didn't want to interfere with the
deliberative process.



                     26                        A-0879-10T2
You were asking me to do what?

[DEFENSE COUNSEL]:   I understand that, but -
-

THE COURT:   What are you asking me to do.

[DEFENSE COUNSEL]:   This is a totally -- a
situation -- I'm kind of, at a loss for
words.    I think the Court has to, first,
inquire to [Juror 16] can he deliberate
tomorrow, and also inquire as to Juror
Number 8.

I guess what took place -- you have an
officer that made representation on the
record that someone slapped her.      I know
there is, at least, two women in there that
has on a pink shirt.    Juror Number 7 has a
pink shirt and a jacket.

THE COURT: Suppose -- [Prosecutor], what do
you propose I do?

[PROSECUTOR]:  I think first thing is to
find out about [Juror 16's] situation for
tomorrow.

The second thing, if he is able to come back
tomorrow then I think the best course of
action is to break now, let them go home,
let   them  calm   down,  bring   them  back
tomorrow.

THE COURT: Suppose [Juror 16] says, "I have
my trip.     I'm leaving on a plane at 8
o'clock tomorrow morning."

[PROSECUTOR]: Then I think we make a pointed
inquiry as to why it is all of a sudden
today when he never mentioned it during voir
dire.   I could recall, and Counsel could
recall, and your Honor could recall that he
never mentioned the trip; and then he was
well aware of the fact that when the case



                      27                        A-0879-10T2
           was going to end even earlier this week or
           what was going on earlier this week and it's
           only today there is some mention of it.

           I think given the gravity of the case, I
           think there would be grounds to say to him
           -- because you didn't advise -- I think the
           interest   of  justice  sometimes  have  to
           prevail and he should be instructed that he
           needs to make every effort to reschedule
           that trip.

           THE COURT:   Suppose I do that.    Either he
           says, "I'm available to deliberate," or I
           order him -- well, under these circumstances
           you are just going to have to forego that
           trip. All right? What do you propose I do
           with the other jurors?

           [PROSECUTOR]: I think you have to be very
           careful about inquiring as to what was going
           on in that jury room.    We can't intrude on
           the deliberative process.

           [(Emphasis added).]

       The prosecutor suggested the judge bring the deliberating

jurors back to the courtroom and instruct again on the need to

be respectful to one another.                  The prosecutor          cautioned the

judge against asking individual jurors to describe in detail

what   transpired     between       the   jurors    involved      in   the     physical

altercation.     According to the prosecutor, such an approach is

"liable    to   get       answers    about       what   is   going        on   in    the

deliberations,      and     I   think     that    is    clearly    inappropriate."

Alternatively,      the    prosecutor      suggested      the     judge    order     the




                                          28                                   A-0879-10T2
jurors to deliberate in a respectful manner under penalty of

being held in contempt.   In the prosecutor's own words:

         [I]f your Honor was to order them and say to
         them, "You are instructed . . . if you
         violate the order you are going to be
         subject to a contempt charge, if you violate
         my order, and you want to get -- have
         physical   altercations   or   inappropriate
         verbal shouting in that jury room" -- then I
         think they will understand that that this is
         inappropriate behavior, it's not something
         that is to go on in that jury room, and
         avoids the possibility that they are going
         to somehow divulge what is going on in terms
         of the deliberations.

         .    .    .      .

         And I think at that point they understand,
         listen, they need to knock it off and they
         need to act in a civilized manner and reach
         a verdict or not reach a verdict, whatever
         may happen, but do it within a manner that
         is completely within the bounds of what is
         expected of a juror in the County -- in this
         State.

         THE   COURT:   [At  this  point  the   judge
         addressed   defense  counsel  by  name   and
         implicitly asked for her response to the
         prosecutor's suggestion.]

         [DEFENSE COUNSEL]: I would agree with [the
         prosecutor], except for the fact that at 3
         o'clock there was a situation that occurred
         and a little over an hour later after you
         had   them  out   here  directing  them  to
         deliberate in a respectful manner to each
         other, and so forth, that an hour later you
         have a volatile situation with the same
         juror from before, also with a juror making
         representations to the officers, not about
         where they stand in their deliberation
         process, that somebody inflicted physical



                                29                         A-0879-10T2
           harm on her. I think that is something very
           serious and the Court could inquire as to
           what took place or what happened without
           divulging where they are in the deliberation
           process.

           My concern is that it's a volatile situation
           in there, whereas people are not allowed to
           openly speak their mind or freely express
           their views in there, especially if you have
           a juror saying that somebody else struck
           them in there.

           THE COURT:    Well, let's start with [Juror
           16] and see where we go from there.

           [(Emphasis added).]

The record reflects that Juror 16 "was brought out into the

courtroom."   At this point, we note the judge did not instruct

the   remaining   jurors   to   cease   deliberating   until   Juror   16

rejoined them.

           THE COURT: [Addressing Juror 16 by name], I
           got a note from the jury that -- I assume
           you are aware of it -- says, "We would like
           to stop today at 4:30 and we would like to
           resume when you deem appropriate."

           Are you able to deliberate tomorrow?

           JUROR 16: No. No, sir.

           THE COURT: You have to speak up louder.

           JUROR 16:   No, sir.

           THE COURT: When are you leaving?

           JUROR 16: Tomorrow morning at 6 a.m.

           THE COURT: Why is it that this morning was
           the first time I heard about this?



                                   30                           A-0879-10T2
         JUROR 16: Because when we first started the
         case was supposed to stop two weeks ago. I
         said no sense [sic] because I thought the
         case was going to finish two weeks ago.

         THE COURT: Why didn't you tell me last week
         or why didn't you tell me before the jury
         started deliberating?

         JUROR 16: Well, I thought, as I said, I
         thought the case was going to be finished
         before tomorrow.

         THE COURT: What if I told you you have to
         come back here tomorrow and continue to
         deliberate?

         JUROR 16: I guess I would have no choice.[18]

         THE COURT: All right.      Go back in the jury
         room for a minute.

18
  We have described in some detail the conflict with Juror 16 to
illustrate our awareness and appreciation of the fluidity of
events and the multiplicity of issues that often arise in jury
trials.   We appreciate the pressure associated with managing
these events as they arise in real time.         However, it is
absolutely imperative for trial judges to appreciate how their
most "subtle behavior" can have a great and unintended coercive
effect on a juror. State v. Figueroa, 190 N.J. 219, 228 (2007).
Here, Juror 16's reluctant acceptance of the court's authority
to disrupt his vacation plans may have had the unintended
consequence of making him angry against a perceived inflexible
and insensitive judicial system. In our view, more information
should have been gathered before determining that Juror 16 could
continue to deliberate.   For example, we do not know: How long
had Juror 16 planned this trip? Did this trip have any special
significance to Juror 16? Was this associated with a wedding
anniversary or some other special event?         Were there any
economic consequences to Juror 16 for postponing or cancelling
the trip?   This and other similar information would have given
the trial judge a better means of ascertaining whether forcing
the juror to continue deliberating may affect the juror's
ability to perform his duties consistent with his oath.



                               31                         A-0879-10T2
    At this point the record reads: "Juror excused from the

courtroom."   We again note the absence of any instruction from

the judge directing Juror 16 not to discuss this matter with his

fellow jurors.   With respect to the jury, given the lack of any

instructions from the court on what they should have been doing

while Juror 16 was being questioned, we also do not know if

deliberations were affected by Juror 16's absence from the jury

room.

    With these observations in mind, we now return to Juror

16's vacation conflict.

         THE COURT:    All right.    Let's talk about
         [Juror 16] for a moment.

         Seems to me that if I tell him he has to
         come back tomorrow he's going to come back
         here and do his duty.

         Anybody disagree with that?    You want to be
         heard?

         [DEFENSE COUNSEL]: He said he would come
         back.   The only thing I would ask of the
         Court is the same way you inquired this
         morning would he be able to focus, would the
         fact you are making him change his trip, or
         anything like, that impact on his ability to
         properly deliberate in the back in the jury
         room. I think the Court would have to make
         that inquiry.

         THE COURT: All right. I'll do that. Now,
         as far as the rest of the jury is concerned,
         I would like each of your input on what I'm
         proposing to do.




                               32                        A-0879-10T2
         You   are    correct   [addressing   defense
         counsel], that I told this jury that.      I
         told them that I was directing them to go
         and   deliberate   and   thoroughly  discuss
         whatever it is they thought they needed to
         discuss, and that I wanted them to treat
         each other with respect and courtesy. But I
         didn't say -- I could have said it a lot
         more forcefully.   And suppose I bring them
         all in the box and tell them that I am
         ordering them under no uncertain terms,
         Court order, ordering them to come back
         tomorrow and deliberate, and they needed to
         treat each other with courtesy and respect
         and no yelling, no screaming, no resorting
         to any threats, either implicit or explicit,
         and no way were they to, in any way, get
         physical or insinuate, in any way, they were
         going to get physical with each other, and
         then ask them each individually would they
         be able to follow that direction without any
         reservation. If they each said yes to that,
         tell them to go home, relax, come back at 9
         o'clock and give it one more shot tomorrow
         morning.

         Is that acceptable to you?

         [DEFENSE COUNSEL]:     Two things.   If the
         Court is going to do that -- I would ask if
         you do that take each juror individually and
         have them answer those questions and then
         afterwards, after you have a consensus that
         everybody could do that, ask if you re-
         instruct them again on the Allen charge,
         whereas they continue to deliberate -- and
         all that other stuff – to give them the
         modified Allen charge that you read before,
         recharge them on that.

    The prosecutor concurred with defense counsel's suggestions

for the most part, but deferred to the court's discretion on

whether to address the jury as a group, or speak to each juror




                              33                        A-0879-10T2
individually.         Although not showing a distinct preference, the

judge   ultimately       acceded    to    defense    counsel's     request     and

addressed each juror individually.               The following instructions

the   judge    gave    Juror   1   illustrate,      for   the   most   part,   the

instructions the judge gave to all of the deliberating jurors.

              THE COURT: [Addressing Juror 1] Basically, I
              called you first because you are Juror
              Number 1, but I plan to call out each juror
              individually and tell them the following,
              and then ask the follow-up questions.     So
              what I'm telling you what I'm going to ask
              you at the end of it I'll do it with every
              juror afterwards.

              I'm going to order you and each and every
              juror in the back who is deliberating --
              this is a Court order -- it's not a
              suggestion, it's not a directive, it's a
              Court order, and I'm going to order you to
              come back tomorrow at 9 o'clock. I want you
              to fully deliberate on any issues that you
              think are appropriate that you think need to
              be discussed to come to a resolution of this
              case, but I'm also ordering each and every
              one of you that you are to treat each other
              with courtesy and respect.     That means no
              yelling at each other, no screaming at each
              other, no threats -- no implicit or explicit
              threats or anything physical is going to go
              on either implicitly or explicitly, would
              you be able to follow that direction and
              continue to fully deliberate in this case?

              JUROR 1: Yes.

              THE COURT:    I'm going to ask you, number
              one, to go back into the jury room for a
              couple more minutes and I'm going to ask you
              to ask [the next juror] to come out.




                                         34                              A-0879-10T2
           THE COURT: [Addressing the attorneys]                Is
           that satisfactory, the way I did that?

           [PROSECUTOR]: Yes, Judge.

           [DEFENSE COUNSEL]: Yes.

           [(Emphasis added).]

    The judge repeated the instructions he gave to Juror 1 to

the next juror who reported to the courtroom.                When the judge

asked   this   juror   whether   he   would   be   able   "to   follow   those

directions and continue fully deliberating the matter[,]" this

juror responded: "Your Honor, if I could?                 I believe that it

would be extremely difficult for the jury to do that." (Emphasis

added).   This prompted the following colloquy:

           THE COURT: I'm asking you -- I'm asking --
           I'm not asking that question.

           THE JUROR: Yes, I could.

           THE COURT: I'm asking, would you be able to
           follow those directions and continue to
           fully deliberate and discuss the case?

           THE JUROR:    Yes.

           THE COURT:   All right.  I'll ask you to go
           back into the jury room and ask [identifying
           the next juror by her last name] to come
           out.

The next two jurors listened to the judge repeat his "order"

setting forth the civility code he expected each juror to follow

during the deliberations, and answered "yes" to the ultimate

question about their ability to follow the "order."



                                      35                             A-0879-10T2
    The most significant deviation from what the judge expected

occurred after he finished instructing Juror 8.              We will recite

the actual instructions the judge gave to Juror 8 because these

instructions did not contain the same compulsory language the

judge emphasized when he addressed the previous jurors.

         THE COURT:   [Addressing Juror 8]   Have a
         seat somewhere at the end wherever you are
         comfortable, just at the end of the jury
         box.

         I'm calling each juror out individually and
         basically saying the same thing to them,
         asking them the same question. So you are -
         - you are Number 8, and then I'll call
         [N]umber 9, and so forth.

         Basically what I am ordering each of you
         jurors,   deliberating  jurors,  to   do is
         ordering you to come back tomorrow at 9
         o'clock, to continue to fully deliberate on
         the case, all go back and discuss whatever
         you believe is necessary to talk about. I'm
         further ordering each of you in your
         deliberations to treat each other, in this
         process, with courtesy and respect, not to
         scream, or yell, or raise voices. Not to in
         any way, either implicitly or explicitly,
         threaten anyone.

         Would   you     be   able      to        follow     those
         directions?

         JUROR 8:   Honestly?  No, not after I just
         got hit in there. I can't do it.

         THE COURT:     Counsel,     let     me    see     you   at
         sidebar.

                       [(Sidebar discussion)]




                                   36                                 A-0879-10T2
[DEFENSE COUNSEL]: Your Honor, . . . I'm not
going to declare the jury a deadlock, but
what I said -- this lady [referring to Juror
8] is the same lady involved with both
incidents and she said she was hit which, to
me, would mean she is not able to openly
speak her mind in that jury room and
somebody, I don't know, who has resulted in
violence against this juror, and she openly
said she could not continue.    And then now
say, for example, you wanted to remove her
and get rid of her and substitute another
juror and have this other juror come in -- I
think given what took place you couldn't do
that.

Second, in addition, you technically would
only -- for example, if the Court remotely
wanted to do that you have -- when they come
back tomorrow and don't reach a decision
then you have a problem again because you
will lose one of the other alternates
because he's leaving to go away on Sunday.
And you also have to make the inquiry of
Juror Number 16 as to is he able to focus
even after you order him to come back.

THE COURT: Push him to the side.

[DEFENSE COUNSEL]: You have a whole lot of
issues, and I would think that at this time,
given what she has said and what we have
seen in the courtroom and have heard in the
courtroom, that this juror and, even Number
2 . . . Juror Number 3 started to allude to
the fact he thought they would not be able
to reach -- and the Court stopped him before
he was able to finish.    I think you have a
whole lot of issues going on with the jury.

THE COURT:   I'm not concerned about [Juror
3. He] says he has no problem continuing to
deliberate and following my orders. I'm not
worried about [Juror 3].




                     37                        A-0879-10T2
[Juror 16], I'm going to ask him those
follow-up   questions  you   want, but for
purposes of this discussion I'm assuming
that [Juror 16] will need to do what he
needs to do and follow the rules.

What about this lady?

[DEFENSE COUNSEL]: This is a problem.

THE COURT:   I heard her say --

[PROSECUTOR]: I think -- I understand this
has been an emotional day for them.

I think if you ordered her to go home,
return tomorrow morning, that -- and given a
chance to cool down, I think, before they
begin deliberations tomorrow morning that
you instruct her that you are going to ask
these questions again tomorrow, but she is
to go home and resume deliberations in a
proper manner, as she was sworn to do. That
while there may be things that upset her in
that room that they need to be put to the
side so she could perform her duties fairly,
without emotion, without any interference,
and then you give her a chance to cool down
and come back tomorrow morning and --

THE COURT: If I go through the rest of these
jurors what happens if one or two more --
their reaction is her reaction?

[PROSECUTOR]: We have to see what happens.
But I think the same thing would apply.

I think if you give them overnight and then
re-instruct them in the morning and then --

THE COURT:   I'm willing to go through the
remaining other jurors and see what kind of
answers I get and then we will speak again.

[DEFENSE COUNSEL]: I know the Court will
wait to see what happens, but I think the



                        38                     A-0879-10T2
            Court has to inquire -- she already said she
            couldn't come back, and if you -- if what
            you are saying is true, if you order them to
            come back and deliberate, all but for the
            fact that she was the one that was hit, she
            wasn't the aggressor, there is a problem. I
            think it's like really volatile in there.

            THE COURT: Well, let me see what the rest of
            them say.

            [(Emphasis added).]

    This lengthy sidebar discussion occurred while Juror 8 sat

in the jury box.       At this point, without further explanation to

Juror 8, the judge asked her to "have a seat outside for a

moment[;]" the judge then asked that Juror 9 be brought into the

courtroom.    Once Juror 9 was in the courtroom, the judge ordered

him to deliberate in a respectful manner, using an abridged

version of the "civility order" similar to the one he gave to

Juror 8.     Juror 9 indicated he was able to deliberate under

those   conditions     and   he    returned   to   the   jury   room   without

further    incident.     The      same   process   was   repeated    with    the

remaining jurors, producing the same result.

    With respect to Juror 16, in addition to instructing him on

his duties to deliberate and interact with his fellow jurors in

a respectful manner, the judge asked him if he "would be able to

fully concentrate, give all your attention that is necessary to

the case?"    Juror 16 responded: "Yes, I would be."                We presume

the judge asked Juror 16 this question in response to defense



                                         39                            A-0879-10T2
counsel's   earlier   request   that    the   court   inquire   about   his

ability "to focus even after you order him to come back."

    At the end of this process, the trial judge decided to

bring Juror 8 back into the courtroom.

            THE COURT: [Addressing Juror 8 by name] I
            brought, like I brought you out of court,
            each and every juror who is sitting in the
            back deliberating, I brought each of them
            out here and I told them that they were each
            under a court order, not a suggestion, not a
            directive, a court order, with all that that
            implies, ordered to come back here tomorrow
            at 9 o'clock to continue to fully deliberate
            and discuss anything that anybody on the
            jury thought was appropriate or relevant to
            discuss in the case.

            I further ordered each and every juror that
            they were under court order to treat
            everyone else in that room with courtesy and
            respect, and I further ordered them that --
            that that meant specifically no yelling, no
            screaming, no raising of voices, no threats,
            whether they were implicit or explicit,
            whether it was verbal or physical, and that
            nobody was to have any physical contact with
            anyone else.   I ordered each and every one
            of them that.

            With that being said, would you be able to
            continue deliberations in this case?

            JUROR 8: If you're ordering me back, yes, I
            will do it, but --

            THE COURT:   Well, but --

            JUROR 8: I can do it fairly.        That's not --
            that's not my problem.

            THE COURT: No, no, no, that's not what I'm
            -- but -- what I'm asking you is would you



                                  40                              A-0879-10T2
          be able to continue your deliberations and
          fully discuss anything that you think is
          appropriate to discuss, would you be able to
          take and stand by any position that you
          think that you need to stand by? Yes?

          JUROR 8:      Yes.

          THE COURT: All right. Counsel, what I plan
          to do is to bring all of the jurors out to
          give   them  those   instructions  that  you
          suggested that I give on -- out of the jury
          charge that I gave earlier and then send
          them home and tell them to come back at 9
          o'clock tomorrow and continue with their
          deliberations as soon as the 12 of them are
          here, that they can start to deliberate.

          Does anybody         want   to    be   heard   further   on
          anything?

          [PROSECUTOR]:        No, Your Honor.       Thank You.

          [DEFENSE ATTORNEY]:         No, Judge.

    The   jury   then    returned      to    the   courtroom.       After   some

preliminary remarks about scheduling matters unrelated to the

case, the trial judge again instructed the jurors assembled by

repeating the model charge on deliberations.                  The judge also

reminded the jurors that when they returned the next day to

resume deliberations, each one of them were

          under court order, not a suggestion, not a
          directive, a court order and all that it
          entails,   and   each   of   you   told   me
          individually that you will have no problem
          following this order and you will follow
          this order, and the order is once again that
          you will fully deliberate the issues in the
          case, that you will fully discuss whatever
          you or any other juror think is important to



                                       41                               A-0879-10T2
         discuss in trying to reach a consensus and
         fulfilling your oath and your duties as
         jurors, that you are -- each have agreed and
         you understand you're under court order to
         treat each other with courtesy and respect,
         and more particularly, that means that
         there's to be no yelling, no screaming, no
         raising of voices, no threats whatsoever,
         either implicitly or explicitly, and no
         reference, nobody is to touch anybody,
         nobody is to get physically near anyone.

         And I am telling you all that if there is a
         violation of that court order I am going to
         take appropriate action.   You all took an
         oath to, and I expect you each to fulfill
         that oath, and that oath is to be fair and
         impartial and fully discuss the issues in
         this case and to decide the case on the
         evidence, on the merits.

         [(Emphasis added).]

    The following day was the third day of deliberations.       The

record of this day began with the trial judge apprising the

attorneys that "somebody passed me a note and said somebody

wanted to put something on the record."   (Emphasis added).   This

prompted defense counsel to acknowledge that she had written the

note.   After waiving defendant's right to be present in the

courtroom "for purposes of this request," defense counsel moved

for the court to declare a mistrial.      Counsel argued that "in

light of what took place yesterday . . . one of the jurors being

assaulted by another juror during deliberation, I feel . . .

this juror's will may be overborne."      Defense counsel further

argued the court's measures were insufficient to overcome the



                               42                         A-0879-10T2
"hostile       environment"          created       in    the     jury      room    by     this

altercation.

      In response, the trial judge noted for the record that he

had     followed    "the          procedure"       defense       counsel     herself       had

recommended       "to    a    T."       The    judge          emphasized    that    he     had

specifically questioned

               the juror in question, [to determine] . . .
               whether   she  was   able   to  continue  to
               deliberate fully and completely about all of
               the issues in the case that she felt were
               important to her and, furthermore, . . .
               asked her, more specifically saying, that
               what I mean by that is that will you be able
               to fully and completely express all your
               opinions, and positions, and stand by any
               position that you think is appropriate? And
               she unequivocally, said yes.

      The prosecutor agreed with the judge's characterization of

Juror 8's disposition and willingness to continue deliberating.

We note, however, that in his remarks endorsing the measures

employed by the court, the prosecutor noted the court had not

taken    any    action       to    discover    the      identity     of    the    juror    who

"actually, did the striking."                 At        the      conclusion        of      the

prosecutor's comments, the judge noted "it's now 10:20 [a.m.]

and     they've    been           deliberating       since       9   o'clock       with     --

apparently, without any problems."                      The court denied defendant's

motion for a mistrial, finding "[e]ach and every juror indicated

they could fully, completely, freely, and thoroughly deliberate,




                                              43                                    A-0879-10T2
and I have no reason to believe that that is not what they are

doing."

       The record shows the jury deliberated for the rest of the

day, during which the jury sent out additional notes seeking

instructions on substantive legal questions and other matters

that are not before us.19         The jury reached a verdict at 3:50

p.m.    on   July   10,   2009,   after   two   and   one-half   days   of

deliberations.

                                    III

Against this record, defendant now appeals raising the following

arguments.

             POINT I

             A MISTRIAL SHOULD HAVE BEEN DECLARED WHEN
             TWO JURORS ENGAGED IN A PHYSICAL ALTERCATION
             DURING DELIBERATIONS.


19
   Our review of the record revealed that defense counsel
objected to the trial court's unilateral decision to have
certain ex parte communications with the jury.    Specifically,
without counsel's knowledge or consent, the judge permitted two
deliberating jurors to ask him permission to take a break "to
get some air, and buy some coffee." This resulted in the court
allowing the jury to take a twenty-minute break without
informing the attorneys.    Although our decision to set aside
defendant's conviction is not based on this issue, because we
are remanding this case for new trial, we take this opportunity
to remind the trial court of our Supreme Court's unequivocal
condemnation of any kind of ex parte communication between the
judge and the jury. As the Chief Justice recently reaffirmed on
behalf of a unanimous Court: "Judges should not engage in ex
parte communications with jurors, even on innocuous scheduling
matters." State v. Morgan, 217 N.J. 1, 17 (2013).



                                    44                           A-0879-10T2
          POINT II

          WALKER'S OUT-OF-COURT IDENTIFCATION OF THE
          CO-DEFENDANT, WHICH HAD BEEN SUPPRESSED AS
          IMPERMISSIBLY   SUGGESTIVE AND   UNRELIABLE,
          SHOULD HAVE ALSO BEEN EXCLUDED AT THIS
          DEFENDANT'S TRIAL. (Not Raised Below)

          POINT III

          THE   COURT   FAILED  TO   CHARGE   ALL  THE
          APPROPRIATE   LESSER-INCLUDED   OFFENSES  OF
          ATTEMPTED MURDER THAT AROSE FROM THE FACTS.
          (Not Raised Below)

          POINT IV

          THE DEFENDANT WAS CONVICTED OF CONSPIRACY TO
          COMMIT MURDER ON AN ACCOMPLICE LIABILITY
          THEORY THAT WAS NOT PRESENTED TO THE JURY.
          (Not Raised Below)

          POINT V

          THE SENTENCE OF 45 YEARS WAS MANIFESTLY
          EXCESSIVE AS IT REPRESENTED THE MAXIMUM
          LEGAL TERM PERMISSIBLE ON EACH OF FOUR
          COUNTS, ALL OF WHICH RAN CONSECUTIVE TO EACH
          OTHER.

    The   dispositive    issue    raised   by    defendant    concerns       the

reliability of the jury's verdict.          Defendant argues the trial

court   should   have   granted   defense       counsel's    motion    for     a

mistrial after the altercation in the jury room.                  Defendant

claims the judge did not properly investigate the nature of this

violent incident between jurors, forcing two or more combative

jurors to continue deliberations in order to obtain a verdict.

The State claims the judge properly exercised his discretion in




                                   45                                 A-0879-10T2
responding to the problems that arose among certain jurors and

appropriately        determined     that     "each     juror   could    continue      to

fully and completely deliberate."                 According to the State, the

"nuanced" verdict returned by the jury is indicative of the

jurors' ability to deliberate effectively.

      We agree with defendant's arguments and reverse.                          On the

second day of jury deliberations, the Sheriff's Officers charged

with the jury's security and safety responded to loud banging on

the jury room's door.            Once inside, the Officers were forced to

intervene      and    physically       separate   three    jurors,     one     of   whom

reported being threatened, accosted, and assaulted by a fellow

juror.      This intervention by the Sheriff's Officers occurred

immediately after or contemporaneous with the jury's report that

it was "hopelessly deadlocked."                 Under these circumstances, no

reasonable juror could have been expected to remain unaffected

by   the   violence        and   chaos     that   permeated      the   deliberative

process.

      We   also      conclude    the    judge's      efforts   to    ascertain      what

occurred in the jury room were inadequate and did not provide

the court with the information necessary to determine whether

there    was   a     way   of    salvaging      this   legally      moribund    trial.

Finally, the supplemental instructions issued by the judge to

restore order and civility were ineffective and served only to




                                           46                                  A-0879-10T2
exacerbate the coercive atmosphere created by the violence that

preceded it.       Because these issues are sufficient, in and of

themselves, to overturn defendant's conviction, we need not, and

specifically do not, reach the remaining arguments raised by

defendant in this appeal.

    We begin our analysis by highlighting that the right to a

jury trial in criminal matters is one of the founding principles

of our Republic and is guaranteed by both the Sixth Amendment of

the Constitution of the United States, United States v. Gagnon,

470 U.S. 522, 526, 105 S. Ct. 1482, 1484, 84 L. Ed. 2d 486, 490

(1985),    and     Article     I,    Paragraph     10     of    the     New    Jersey

Constitution, State v. A.R., 213 N.J. 542, 557 (2013).                         As the

guardian of that guarantee, the trial judge is entrusted with

the responsibility of controlling courtroom proceedings and is

bounded    by    the   law   and    the   rules   of    the    court.     State      v.

Tedesco, 214 N.J. 177, 188-89 (2013).

    A jury verdict must be guided by correct legal instructions

from the trial judge and unaffected by matters extraneous to the

evidence presented at trial.              Thus, "[e]rroneous instructions on

matters material to the juror's deliberations are presumed to be

reversible error."           State v. Allen, 308 N.J. Super. 421, 431

(App. Div. 1998) (quoting State v. Grunow, 102 N.J. 133, 148

(1986)).    Although granting a mistrial in a criminal case "is an




                                          47                                  A-0879-10T2
extraordinary remedy[,]" the trial judge is bound to grant this

relief when it is necessary "'to prevent an obvious failure of

justice.'"     State v. Yough, 208 N.J. 385, 397 (2011) (quoting

State v. Harvey, 151 N.J. 117, 205 (1997)).

      The role of the jury as the judges of facts is predicated

on the integrity of the deliberative process.                          State v. Corsaro,

107   N.J.   339,    346     (1987).         In    those      cases     where    the    jury

announces     an    inability     to     reach          a    unanimous       verdict,    the

decision     whether    to    grant     a    mistrial         turns     on    whether   the

duration of the deliberations balanced against the length of the

trial and the complexity of the proofs shows the jury has made a

good-faith effort to reach a sustainable verdict.                             See State v.

Ramseur, 106 N.J. 123, 300-05, (1987), cert. denied, 508 U.S.

947, 113 S. Ct. 2433, 124 L. Ed. 2d 653 (1993).                               Beyond this,

any further direction from the judge to continue deliberations,

especially in the absence of a reminder of the right to return a

non-unanimous       verdict,     could       be     viewed      as     coercive.         See

Figueroa, supra, 190 N.J. at 236 (citing State v. Hunt, 115 N.J.

330, 382-85 (1989)).

      In determining the propriety of a trial court's response to

a jury's inability to reach a unanimous verdict, our Supreme

Court has identified two principal concerns: (1) whether the

supplemental        instruction        has        the       capacity     to     improperly




                                             48                                   A-0879-10T2
influence the dissenting jurors to change their votes; and (2)

whether "the weighty role that the judge plays in the dynamics

of the courtroom" improperly coerced the jury into returning a

verdict.    Id. at 237-38.

    Thus,      when        instructing      a         jury     that    reports          being

deadlocked, a trial judge must be especially vigilant to avoid

communicating a results-oriented message that could be perceived

as intolerant of dissent and antagonistic to the free expression

of strongly held beliefs that may not be shared by a majority of

the deliberating jurors.              As the Court emphasized in Figueroa,

"'juries may accord great weight and deference to even the most

subtle behaviors of the trial judge.'"                         Id. at 238 (internal

citation omitted).

    In     State    v.     Czachor,   82    N.J.       392,    405    n.4    (1980),       our

Supreme    Court     approved     the      modern       version       of    supplemental

instructions       trial    judges    now       use    in     response      to   a    jury's

announcement of being deadlocked.

            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 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



                                           49                                        A-0879-10T2
               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.

               [Ibid.       (internal               citation         omitted)
               (emphasis added).]

       These instructions envision a deliberative process guided

by    reason    and   integrity.              The   admonition       to   guard       against

reaching       an   agreement          that   may   do    "violence       to    individual

judgment" is a metaphor for what we now refer to as "bullying."

The    instruction       warns          against      majoritarian           bullying        and

permitting      expediency        of     results    to    justify     intellectual          and

moral dishonesty.        The corrosive effect "violence to individual

judgment"       may   have        on    the     deliberative         process        pales    in

comparison to the chilling effect actual physical violence can

have on the ability to freely and honestly express controversial

or unpopular views.

       A   physical    altercation            between    two    or   more    deliberating

jurors constitutes an irreparable breakdown in the civility and

decorum      expected        to        dominate     the        deliberative          process.

Physical violence among jurors is the antithesis of the rational

discourse embodied in the Court's admonition in Czachor.                                      A

jury verdict tainted by such an inherently coercive and chaotic




                                               50                                    A-0879-10T2
environment is an affront to any notion of civilized justice and

cannot stand as a matter of law.

       It is particularly important to emphasize that the violence

that erupted in the jury room here occurred immediately after,

if not contemporaneous with, the announcement by the jury that

it was "hopelessly deadlocked . . . finding it impossible to

make    further       progress     to    make      a   unanimous         decision       on   any

Count."       It is thus reasonable to conclude that the violent

episode may have had some causal relationship to the impasse.

Although we do not know what caused these belligerent acts, we

know that what occurred was not merely a passionate exchange of

conflicting       views.          Jurors   7    and     8,    and    possibly       a    third

unidentified      juror,      were      involved       in    an    act    of   violence       so

serious and disruptive, that it prompted the remaining jurors to

seek immediate assistance by summoning the Sheriff's Officers

responsible for their safety.

       As    described      by    defense      counsel,       an    unknown     number        of

jurors began "banging on the door . . . [not] like a knock, it

was a significant amount of banging like, 'We need somebody here

right       away.'"         The    Sheriff's       Officer         who    responded          also

indicated hearing loud banging on the jury room's door.                                 One of

the    Officers       who   entered     the     jury    room       described    seeing        "a

heated argument between two jurors."                    Although he "asked them to




                                              51                                    A-0879-10T2
please just sit down, . . . [t]he argument escalated." (Emphasis

added).     Unfortunately, the trial judge did not ask the Officer

to    elaborate    or   explain   what     he    meant   by   "the   argument

escalated."       Despite the absence of these crucial details, we

are nevertheless troubled by the fact that the intervention of

law enforcement officers not only failed to stop or reduce the

intensity of the argument, but the quarrel actually "escalated"

after their response.

      The Sheriff's Officers who responded to the jury room were

also uncertain about the number of jurors involved in the melee.

One   Officer     described   witnessing    an   argument     "between   three

parties."     After the Officers were able to physically separate

the belligerents, one Officer reported to the judge that Juror 8

said "somebody tried to take her in the bathroom and wanted to

fight with her in the bathroom."           Juror 8 also told the Officer

that: "The juror with the pink shirt slapped her."                   When the

judge asked the Officer to identify the gender of the juror who

had allegedly "slapped" Juror 8, the Officer responded:

            That would be a woman. She was involved in
            the first thing that happened.    This was
            with a different juror.

            So when [Juror 8] said she slapped her
            [Juror 8] went back in to try to get back in
            her face, calling her a liar, and that's
            when Officer Karlick took the lady in the
            pink [(the alleged assailant)] and I took
            [Juror 8] outside, and we separated her.



                                    52                               A-0879-10T2
     From    this     record,   it   is   clear     the   trial   judge   had

sufficient grounds at the time to find probable cause that one

juror had threatened to commit physical harm against a fellow

juror, and another juror may have actually physically assaulted

a fellow juror, all in the course of deliberations.                 Although

the decision of the Sheriff's Officers to separate the jurors

involved avoided the potential for further escalation of the

violence, we can reasonably assume the chaotic tension created

by this event lingered on in the jury room like menacing storm

clouds.     Under these circumstances, it defies common sense to

expect a reasonable juror to be able "to deliberate with a view

to   reaching    an    agreement     without      violence   to   individual

judgment."

                        Supplemental Instructions

     The trial judge's attempts to restore order and respect to

the deliberative process through supplemental instructions were

in our view wholly and facially ineffective given the level of

violent discord that had occurred up to that point.                 However,

our concern here with respect to these instructions runs far

deeper.     We are satisfied that the judge's instructions actually

exacerbated the problem.        These instructions were nothing short

of a sweeping, judicially imposed "civility code of conduct."




                                     53                             A-0879-10T2
    Regarding      the    civility         restraining      order,      the      court

emphasized:     "it's not a suggestion, it's not a directive, it's

a Court order" enjoining the jurors "to fully deliberate on any

issues that you think are appropriate that you think need to be

discussed to come to a resolution of this case."                     However, the

jurors engaged in these court-ordered "discussions" were also

"ordered" to "treat each other with courtesy and respect."                          The

judge then elaborated on the kind of conduct he expected the

jurors to follow: "no yelling at each other, no screaming at

each other, no threats -- no implicit or explicit threats or

anything   physical      is   going    to       go   on   either   implicitly        or

explicitly."     (Emphasis added).              The court concluded with the

following admonition:

           And I am telling you all that if there is a
           violation of that court order I am going to
           take appropriate action.   You all took an
           oath to, and I expect you each to fulfill
           that oath, and that oath is to be fair and
           impartial and fully discuss the issues in
           this case and to decide the case on the
           evidence, on the merits.

           [(Emphasis added).]

    Not surprisingly, when the trial judge asked Juror 8 if she

would be able to abide by this court-ordered civility code, she

responded: "Honestly?         No, not after I just got hit in there.                   I

can't do it."      This prompted the court to direct Juror 8 to sit

outside,   while   he    engaged      in    a   lengthy    discussion    with       the



                                           54                                 A-0879-10T2
attorneys     about       what   should    be       done   with    Juror       8.     Defense

counsel reminded the court that Juror 8 was the alleged victim

of the assault, not the aggressor.                     The prosecutor, however, was

unmoved by this distinction, and insisted the court make clear

to Juror 8 her obligation under the civility code to deliberate.

      After    instructing         the    remaining        jurors       with    the    court-

ordered civility code, and addressing the vacation conflict with

Juror 16, the judge brought Juror 8 back before him and repeated

the court-ordered civility code.                    At the conclusion of which, he

once again asked her if she was willing to abide by it.                                    When

she responded: "I can do it fairly.                     That's not -- that's not my

problem,"     the        judge   seemed        baffled     and     frustrated         by     her

response:

            THE COURT: No, no, no, that's not what I'm
            -- but -- what I'm asking you is would you
            be able to continue your deliberations and
            fully discuss anything that you think is
            appropriate to discuss, would you be able to
            take and stand by any position that you
            think that you need to stand by? Yes?

            JUROR 8:        Yes.

      This colloquy between Juror 8 and the trial judge captured

the essence of the futility of any attempt to impose civility

and   respect    in       the    deliberative          process     by    the        threat   of

judicial      sanctions.           As     a      starting        point,        the     court's

prohibitions        of     "implicit      or        explicit     threats       or    anything




                                               55                                     A-0879-10T2
physical . . . either implicitly or explicitly," are so facially

ambiguous,      any    attempt         at   enforcement          is    rendered      virtually

impossible.       What one juror may perceive as an implicit threat

to intimidate, may be viewed by another juror as nothing more

than    a     passionate,        yet    ultimately             innocuous     expression        of

opinion about the evidence in the case.

       Second, this approach ironically places the judge in the

middle of an intentionally cloistered environment.                                Any alleged

violation of this court-ordered civility code would require the

judge    to    adjudicate        the    dispute          and    impose      the   appropriate

sanction if warranted.             This would presumably require the judge

to conduct some kind of hearing to determine the veracity of the

accuser.       Rudimentary notions of due process would entitle the

accused juror to call other jurors as witnesses in his or her

own    defense.        In    short,         this    is    a     completely        impractical,

utterly unworkable approach that impermissibly transforms the

judge into an interloper at the center of jury deliberations.

This    approach      is    in   direct       violation         of    one   of    the   Supreme

Court's principal concerns in Figueroa, avoiding "the weighty

role that the judge plays in the dynamics of the courtroom" to

improperly coerce the jury into returning a verdict.                                 Figueroa,

supra, 190 N.J. at 237-38.




                                               56                                       A-0879-10T2
     As   a   final     matter,   we    are   compelled     to   comment    on    the

limited investigation conducted by the trial judge.                       This case

involved extremely serious charges against defendant.                     The State

alleged    defendant,     a   member    of    a   notoriously    violent     street

gang, murdered a nineteen-year-old woman by shooting her nearly

at pointblank range, in the living room of her own apartment.

He and his co-defendant thereafter allegedly threw this young

woman out of the fourth-story window of her apartment.                        Other

occupants in the apartment also allegedly escaped being shot by

jumping out the same fourth-story window.                    According to the

State, defendant committed these extreme acts of violence as

gang-related acts of retaliation.

     Against this backdrop, when the trial judge became aware of

a violent altercation between two, possibly three jurors, on the

first full day of jury deliberations, the judge should have

officially reported the incident to a senior ranking Officer of

the Sheriff's Department, the law enforcement agency entrusted

for the safety and security of the deliberating jurors. 20                        The

record    before   us    is   grossly   inadequate     to   make    any    kind   of

informed determination about the root cause of this altercation.


20
    This law enforcement investigation would follow a judicial
determination that a mistrial is warranted.       Absent such a
finding, the judge has complete and exclusive authority over the
management of the trial.



                                         57                                A-0879-10T2
    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.     Our   courthouses    are     the    citadels   of   justice.      A

courtroom is a forum governed by reason and invulnerable to

intimidation because of it.           Jury duty is both a right and

obligation of citizenship.        Jurors who report to our courthouses

in response to this obligation and to exercise this right are

entitled to feel safe and secure.

    Reversed and remanded.        We do not retain jurisdiction.




                                      58                               A-0879-10T2
