                   NOT FOR PUBLICATION WITHOUT THE
                  APPROVAL OF THE APPELLATE DIVISION

                                             SUPERIOR COURT OF NEW JERSEY
                                             APPELLATE DIVISION
                                             DOCKET NO. A-5320-14T4

STATE OF NEW JERSEY,
                                               APPROVED FOR PUBLICATION
       Plaintiff-Appellant,
                                                    February 22, 2016
v.
                                                    APPELLATE DIVISION

JOHN N. MAHONEY,

     Defendant-Respondent.
__________________________________

             Argued January 25, 2016 – Decided February 22, 2016

             Before Judges Fasciale, Nugent and Higbee.

             On appeal from Superior Court of New Jersey,
             Law Division, Middlesex County, Indictment
             No. 08-06-0996.

             Nancy   A.   Hulett,  Assistant   Prosecutor,
             argued the cause for appellant (Andrew C.
             Carey,     Middlesex    County    Prosecutor,
             attorney; Ms. Hulett, on the brief).

             David A. Gies, Designated Counsel, argued
             the cause for respondent (Joseph E. Krakora,
             Public Defender, attorney; Mr. Gies, on the
             brief).

       The opinion of the court was delivered by

FASCIALE, J.A.D.

       We   granted   leave   to    appeal   from    a   June   26,   2015   order

denying the State's motion to preclude two deliberating jurors

from   addressing     the   court    at   defendant's     sentencing     hearing.
The    State    maintains          that     it       is     improper     to       allow     juror

participation at such a proceeding.                              We agree, reverse, and

remand for sentencing without input from the jurors.

       We   hold     that    a     judge    may       not    consider       for     sentencing

purposes    any      comments      from     a    deliberating          juror      to    identify

applicable      aggravating            or   mitigating           factors      set      forth    in

N.J.S.A. 2C:44-1(a) and (b).                    Consequently, deliberating jurors

are not permitted to participate at a defendant's sentencing

proceeding.          To allow juror participation would unnecessarily

create a substantial risk of distracting the jurors from their

primary purpose – serving as judges of the facts – and would

indubitably undermine the sanctity of the jury's deliberative

process in our system of jurisprudence.

                                            I.

       Defendant      shot       and    killed       his     father.          A     grand      jury

indicted       and    charged          defendant          with     first-degree           murder,

N.J.S.A.       2C:11-3(a)(1)           or    (2)      (Count        One);      second-degree

possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-

4(a)   (Count      Two);     and    third-degree            hindering      apprehension         or

prosecution, N.J.S.A. 2C:29-3(b)(4) (Count Three).                                  The matter

proceeded to trial.

       In defense of the charges, defendant presented testimony

during the trial that he was a victim of battered child syndrome




                                                 2                                      A-5320-14T4
because    his     father    had        allegedly      physically        and      emotionally

abused him.        The jury found defendant guilty of Counts Two and

Three.      As to Count One, the jury found defendant guilty of

first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a), (c).

In     returning    their      verdict,        the     jury       sent      the    judge       an

unsolicited handwritten note stating in part, "[w]e the jury . . .

agree on the recommendation that [defendant] have significant

therapy."        The   court       then    scheduled         a    sentencing        date      for

defendant.

       Approximately one week after the verdict, juror number two

wrote defendant a letter expressing her heartfelt, overwhelming

feelings about defendant, the crimes he committed, and her wish

that he have a second chance in life.                            Defendant responded to

juror number two,1 which prompted her to write defendant a second

letter.     After expressing her own emotional struggles about the

facts of the case, juror number two encouraged defendant to be

strong.      Juror        number    two     then      wrote       the    judge      a    letter

revealing the mental impressions of the jury and reiterating her

firm    belief     that    this     was    a       "very    complicated,          emotionally

difficult case."          She ended her letter to the judge asking him

to   sentence      defendant       to    probation         and    require      defendant        to

undergo extensive mental health therapy.

1
     We have not been provided with defendant's response.



                                               3                                        A-5320-14T4
       After the verdict, juror number ten wrote defendant, the

judge, and defense counsel.            In her letter to defendant, she

expressed    the     mental    impressions   of   the    jury    and    her   own

struggles and frustration in deliberating with the other jurors.

She indicated to defendant she spoke to juror number two and

planned to contact defense counsel and write the judge to "see

if that will help."           In her letter to the judge, juror number

ten stated "many of [the jurors] were very conflicted in coming

to the decision of [a]ggravated [m]anslaughter."                   Like juror

number two, she expressed to the judge her sincere belief that

defendant needed "treatment not punishment."               Juror number ten

then wrote defense counsel, on behalf of "several jurors[,]"

revealing their deliberative mental impressions and indicating

they     wanted     defendant     to   receive    "help     as    opposed      to

punishment."

       Defense counsel forwarded all the letters to the judge,

notifying him jurors two and ten would speak at defendant's

sentencing.       The State filed its motion to preclude those jurors

from addressing the court at sentencing.                Defense counsel then

sent the judge an email and an attached written statement he

received from jurors two and ten.            The statement, which the two

jurors    intended    to   read   at   sentencing,   revealed     the   overall

mental impressions of the entire jury, indicated that the jury




                                        4                               A-5320-14T4
reached a compromise verdict, and requested the judge to show

leniency    at      sentencing     and    require       defendant      to        receive

psychological help.

      In his written decision, the judge acknowledged there was

no case on point addressing whether a deliberating juror has the

right to speak at a defendant's sentencing.                      The judge found

persuasive language contained in a divided opinion rendered by

an appellate court in the State of Wisconsin,2 and entered the

order   under    review    allowing      jurors   two     and   ten   to    speak     at

defendant's      sentencing,     provided     they      did     not   "discuss        or

disclose what occurred during the jury deliberations."3

      On appeal, the State argues that jurors two and ten "have

no   relevant     role"    at    defendant's      sentencing.              The     State

maintains, therefore, that the judge abused his discretion by

denying its motion.          The State contends essentially that the

judge ignored well-settled roles of the jury and the court in

our system of jurisprudence.

      We   review    the   order   permitting       the    jurors     to    speak    at

defendant's sentencing using an abuse of discretion standard.

2
     State v. Marhal, 493 N.W.2d 758 (Wis. Ct. App. 1992).
3
     The judge planned to interview the jury before sentencing
defendant to determine whether they communicated with defendant
during the trial.   We conclude such interviews are unwarranted
as there is no evidence in this record of             any such
communication.



                                          5                                  A-5320-14T4
State v. Blackmon, 202 N.J. 283, 297 (2010).                  Our Supreme Court

has "recognized implicitly that sentencing courts can and do

exercise     discretion      permissibly         in    allowing     members      of    a

defendant's family or others who appear on defendant's behalf to

be heard."      Id. at 300.

                                       II.

    We agree with the State that jurors two and ten have no

relevant information to add for consideration by the sentencing

judge   because    they      are    limited       to   addressing    the    evidence

presented during the trial; that is, the same evidence that the

judge heard.      More importantly, allowing the jurors to speak at

defendant's      sentencing        ignores       the    primary     and    important

fundamental      role   of    the    jury        and   unnecessarily       runs       the

substantial risk of distracting the jurors and undermining the

sanctity of the jury's deliberative process.

    It     is   well    settled      that       "jurors   decide    the    facts      in

accordance with the law as instructed by the court, and the

court determines the punishment to be imposed upon the jury

finding of guilt."           State v. Reed, 211 N.J. Super. 177, 184

(App. Div. 1986), certif. denied, 110 N.J. 508 (1988).                          Jurors

are therefore not informed as to the possible sentence of a

defendant.      Ibid.     This rule "is based upon the rationale that

informing the jury of the possible sentence would: (1) draw




                                            6                                 A-5320-14T4
attention away from their chief function — to judge facts; (2)

open the door to compromise verdicts; and (3) confuse the issue

or issues to be decided."        Id. at 185.       The premise of this rule

is based on the unique function and role of the jury.

    Jurors    are    judges     of   the   facts.      They    determine       the

credibility of witnesses, the weight to attach to the testimony

of each witness, and whether the State has proven each and every

element of the offenses charged beyond a reasonable doubt.                     See

e.g., State v. Feaster, 156 N.J. 1, 81 (1998) (explaining "it is

exclusively   within     the   province    of    the jury to    find fact and

evaluate   witness     credibility"),      cert.     denied,    532 U.S. 932,

121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001); State v. Anderson,

127 N.J. 191, 208-09 (1992) (acknowledging "each element of the

crime must be decided by the jury").                It is the jury's sworn

duty to arrive at a just conclusion after considering all the

evidence presented during the course of the trial.                      The jury

fulfills   that   duty   by    weighing    the   evidence     calmly,    without

passion, prejudice, or sympathy.            This is so because allowing

these emotions to influence their decision has the potential to

deprive both the State and defendant of a fair and impartial

trial by fair and impartial jurors.                 The jurors' service is

complete upon return of a verdict.




                                       7                                 A-5320-14T4
       Sentencing is not intended for jurors to voice concerns

about the verdict or appropriate punishment for a defendant.

The    time    for    the    jury   to   focus    on   the    verdict      is    during

deliberations, where the jurors must consult with each other and

deliberate      after   an    impartial    consideration       of    the   evidence.

Jurors are instructed not to surrender their honest conviction

as to the weight or effect of the evidence for the mere purpose

of returning a verdict.             The role of the jury – being judges of

the    facts    –    would   therefore     be    significantly       undermined        by

allowing       jurors   to    advocate    for     or   against      aggravating         or

mitigating factors at sentencing.

                                         III.

       A judge's role at sentencing, on the other hand, is well

defined    and      circumscribed.       In     determining    what     sentence       to

impose, the judge "must identify any relevant aggravating and

mitigating factors set forth in N.J.S.A. 2C:44-1(a) and (b) that

apply to the case" and "[t]he finding of any factor must be

supported by competent, credible evidence in the record."                          State

v. Case, 220 N.J. 49, 64 (2014).                In arriving at these findings,

a judge "should consider whether the individual seeking to be

heard on defendant's behalf has information that bears upon an

aggravating or mitigating factor."               Blackmon, supra, 202 N.J. at

305.




                                          8                                     A-5320-14T4
     The jury plays no role at sentencing in assisting the judge

to   identify      aggravating    and     mitigating        factors.          This     is

especially    so    because   they      have    no    information       relevant       to

establishing aggravating and mitigating factors other than what

they and the judge learned through the evidence adduced at the

trial.     The only other information they have is derived from

their     mental    impressions    developed          during     the    deliberative

process, which cannot be revealed.

     We    fully    understand    and    appreciate        the   genuine      concerns

expressed by jurors two and ten.               This was a tragic case.            There

are well-settled safeguards in place, however, to assist the

judge in sentencing defendant and making the requisite findings

as to applicable aggravating and mitigating factors.

     "[A]    defendant      has   the    right       to   allocute,     that     is    to

address    the     court   directly,     in    connection        with   his    or     her

sentence."       Id. at 297-98 (citing State v. Cerce, 46 N.J. 387,

393-95 (1966)).       Rule 3:21-4(b) states the "court shall address

the defendant personally and ask the defendant if he or she

wishes to make a statement in his or her own behalf and to

present any information in mitigation of punishment."                               If a

defendant so elects, he or she may speak or his or her counsel

may speak on the defendant's behalf.                 Ibid.; see also Blackmon,

supra, 202 N.J. at 298.




                                         9                                     A-5320-14T4
       Other individuals also have the right to express themselves

at    sentencing.         In    1985,   the    Legislature      passed    the    Crime

Victim's Bill of Rights, N.J.S.A. 52:4B-34 to -38, and soon

thereafter    victims      or    family   members       of    murder   victims    were

granted    the    right    to    have   written       statements   included       in   a

defendant's presentence report and be advised of the right to do

so.     N.J.S.A. 2C:44-6; Blackmon, supra, 202 N.J. at 298.                            In

1991, the Crime Victim's Bill of Rights was amended to grant the

crime victim or the victim's family increased rights:

            The Legislature finds and declares that
            crime victims and witnesses are entitled to
            the following rights:

                    . . . .

            n. To make, prior to sentencing, an in-
            person statement directly to the sentencing
            court concerning the impact of the crime.

            This statement is to be made in addition to
            the statement permitted for inclusion in the
            presentence report by N.J.S.[A.] 2C:44-6[.]

            [N.J.S.A. 52:4B-36(n).]

       "[O]ther     than       defendants,     and    crime     victims    or    their

survivors, there is no absolute right to speak at a sentencing

proceeding;       instead,      permitting     others    to    address    the     court

directly     is    a   matter      entrusted     to     the    sentencing       court's

discretion."        Blackmon, supra, 202 N.J. at 305.                    Our Supreme

Court explained:




                                          10                                A-5320-14T4
         In exercising that discretion, courts should
         be guided by this Court's recognition that
         they need not entertain mere pleas for mercy
         and need not permit presentations that are
         cumulative or that merely repeat previously-
         submitted written comments.      Nor are they
         required to permit presentations that are
         scurrilous,   vengeful,    or    inflammatory.
         Moreover, courts should consider whether the
         individual   seeking    to    be    heard   on
         defendant's behalf has information that
         bears upon an aggravating or mitigating
         factor, and may require a proffer consistent
         with one of those factors from defendant's
         counsel, electing to limit the grant of
         permission accordingly.

         [Ibid. (emphasis added).]

    In some instances, judges have also allowed family members

and individuals close to a defendant to speak on his or her

behalf at sentencing.      See, e.g., State v. Bieniek, 200 N.J.

601, 605 (2010) (stating the court "heard from [the] defendant's

father, grandmother, and aunt"); see also Blackmon, supra, 202

N.J. at 304 (remanding for a statement of reasons as to why the

defendant's   stepfather   was   not     allowed   to   speak   at    the

sentencing    hearing).     In   those     instances,    however,     the

individuals who spoke at the defendant's sentencing presumably

had a close personal relationship with the defendant, or had

pertinent information to contribute at sentencing other than,

like here, that which is based solely on the evidence introduced

during the trial.




                                 11                             A-5320-14T4
    Consequently,       these    safeguards       afford   the   parties    ample

opportunity    to      adequately       present     evidence      of    relevant

aggravating and mitigating factors for the sentencing judge's

consideration.        Moreover, precluding deliberating jurors from

speaking at defendant's sentence would not result in a manifest

injustice or otherwise prejudice defendant or the State.

                                    IV.

    Although not binding on us, we respectfully conclude that

the judge's reliance on the Wisconsin appellate court's opinion

in State v. Marhal, 493 N.W.2d 758 (Wis. Ct. App. 1992), is

misplaced.       In    Marhal,    the     majority's       opinion     indirectly

referenced, in a footnote, the subject of jurors participating

during sentencing.       Marhal, supra, 493 N.W.2d at 763 n.7.                 The

majority's reasoning was tempered by a well-reasoned concurrence

discouraging such practice.         Consequently, the issue before us

was not squarely addressed by the appellate court in Marhal.

    In Marhal, the defendant argued he was denied due process

because the judge allowed a juror to speak at sentencing.                      Id.

at 762.      The defendant contended that allowing the juror to

speak "destroyed the trial judge's impartiality, and resulted in

a sentence that was influenced by the juror's comments."                    Ibid.

The juror stated at sentencing that "the vast majority of people

on the jury felt that [the defendant] was guilty of first[-]




                                        12                               A-5320-14T4
degree intentional homicide" and that the jury only changed its

verdict to the lesser offense because of one persistent juror.

Id.     at    762-63.      The       juror   opined    that    the     maximum    sentence

should be given.             Id. at 763.           However, during the hearing on

the defendant's post-conviction motion, the trial court "found

as    a      fact[]   that      it    did    not    consider     those      comments     at

sentencing."            Ibid.         The    appellate    court,       in   a    footnote,

explained       without      any      meaningful      analysis    that      a   sentencing

judge may consider a juror's statements so long as the jury's

deliberations or mental processes are not revealed.                             Id. at 763

n.7.4

        Judge Schudson's concurrence in Marhal correctly cautioned

against reading the opinion too broadly, explaining "we have

affirmed the decision of the trial court that allowed and then

circumscribed its consideration of a juror's comments.                             This is

not to suggest, however, that appellate courts approve juror

participation         in   sentencing."             Id.   at     766    (Schudson,      J.,

concurring).          Judge Schudson explained the danger in allowing

jurors to have a role in sentencing, namely that allowing such a

role may influence the verdict they reach, causing them to weigh

punishments and options rather than simply deciding guilt or

4
     The Marhal court reached this conclusion even though the
juror in that case revealed the jury's deliberations and mental
processes.



                                              13                                  A-5320-14T4
innocence.        Ibid.      Acknowledging that juror participation in

sentencing was not the issue in Marhal, Judge Schudson properly

noted that "sentence recommendations by jurors would relate to

the   deliberative        process."             Id.    at   767.              Judge      Schudson

concluded    that       "[the    court's]        holding       .    .    .    should      not    be

interpreted       as      one      that        approves        or        encourages          juror

participation in sentencing."                  Ibid.

      Other courts considering this issue have come to the same

conclusion as Judge Schudson in Marhal.                        In People v. Byer, 394

N.E.2d 632, 642 (Ill. App. Ct. 1979), an appellate court in

Illinois rejected the defendant's argument that the judge "erred

in refusing to hear the testimony of two jurors who wished to

testify     on    her     behalf    at     the        hearing       on       aggravation        and

mitigation."        The     court       properly       noted       "[i]t      is    the     jury's

function to determine guilt and the judge's function to impose

sentence.        Because the judge heard all the testimony that was

heard by the jurors, there is no reason to believe that they

could have added any pertinent information at the hearing on

aggravation and mitigation."               Id. at 643.

      Likewise, in Parker v. State, 577 S.W.2d 414, 414 (Ark.

1979),    the     Supreme       Court     of    Arkansas        reversed           the    circuit

judge's sentence where the judge "had requested his probation

officer to interview members of the jury about what they thought




                                               14                                         A-5320-14T4
to be a proper sentence."    The court was "unanimously of the

opinion that the jurors should not have been questioned about

their views, especially after they had separated, had returned

to their homes, and had been subjected to the possibility of

being influenced by out-of-court occurrences."   Ibid.

    Reversed and remanded.   We do not retain jurisdiction.




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