                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-5045-16T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

EILEEN LEONE,

     Defendant-Appellant.
______________________________

                    Argued March 27, 2019 – Decided June 23, 2020

                    Before Judges Fuentes, Vernoia and Moynihan.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Atlantic County, Indictment No. 14-09-2731.

                    Lauren Stephanie Michaels, Assistant Deputy Public
                    Defender, argued the cause for appellant (Joseph E.
                    Krakora, Public Defender, attorney; Stephen W.
                    Kirsch, Assistant Deputy Public Defender, of counsel
                    and on the brief).

                    Jennifer K. Kmieciak, Deputy Attorney General,
                    argued the cause for respondent (Gurbir S. Grewal,
                    Attorney General, attorney; Jennifer K. Kmieciak, of
                    counsel and on the brief).
         The opinion of the court was delivered by

FUENTES, P.J.A.D.

         Defendant Eileen Leone was tried before a jury and convicted for the

murder of Darius Smith. N.J.S.A. 2C:11-3a(1), (2). On March 3, 2017, the trial

judge sentenced defendant to serve a term of thirty years imprisonment without

parole. This was the second time defendant stood trial on this charge. The first

time, the judge declared a mistrial sua sponte in response to certain irregularities

that, although unrelated to the charge against defendant, had the capacity to

undermine the jury's ability to remain fair and impartial.

         Defendant argues the trial judge erred in declaring a mistrial in the first

trial. Consequently, defendant argues the State was constitutionally barred from

trying her a second time on these same offenses under the Fifth Amendment

double jeopardy clause.       Furthermore, even if this court were to reject this

argument, defendant argues the trial judge committed reversible error by

denying defense counsel's and the prosecutor's joint application for a mistrial in

the second trial based on the misconduct of one of the deliberating jurors. Based

on our review of the record and mindful of prevailing legal standards, we affirm.

         We derive the following facts from the record developed before the trial

court.



                                                                           A-5045-16T4
                                          2
                                        I

                                 The First Trial

      On September 9, 2014, an Atlantic County grand jury indicted defendant

for the murder of Darius Smith. The trial was originally scheduled to start on

January 25, 2016. After several postponements, it began on August 8, 2016.

Jury selection ended on August 10, 2016. The jury was sworn and the attorneys

presented their opening statements that same day. After the attorneys' opening

remarks, the trial judge excused the jury to conduct a N.J.R.E. 104 hearing to

determine the admissibility of a statement made by defendant to a police officer.

      During this interlude, an assistant in the jury management office informed

the trial judge that four members of the jury in the Leone case saw an unknown

individual taking photographs of license plate numbers of cars parked in the

courthouse parking lot.    The assistant recognized the photographer as the

defendant in an unrelated case. The assistant told the trial judge that the jurors

in the Leone case who saw the photographer's unusual behavior appeared to be

concerned.

      After conferring with counsel, the judge decided to question all fifteen

jurors individually to find out what they saw and knew about the incident. The

judge told the attorneys that based on the jurors' responses, he would determine



                                                                         A-5045-16T4
                                        3
whether the jurors could continue to serve on the jury. The first five jurors the

judge questioned indicated unanimously that they did not have any concerns

about remaining on the jury. At this point, the judge held a sidebar conference

to inform the attorneys that a member of his staff had given him a note indicating

that detectives from the Atlantic County Prosecutor's Office (ACPO) were

outside the courtroom seeking to interview the jurors about what they witnessed

in the parking lot.

      The trial judge decided to take a fifteen-minute recess to consult with the

vicinage's Presiding Judge of the Criminal Part. When the judge returned, he

informed the attorneys at sidebar that he had decided to declare a mistrial sua

sponte. In the judge's view, he did not have any other viable alternative because

the jurors who witnessed the individual taking photographs of license plates in

the courthouse parking lot could be called as potential witnesses in that case.

The jurors/witnesses would be questioned by representatives of the ACPO, the

same law enforcement agency that was prosecuting defendant in this case.

Although defense counsel objected, the judge overruled the objection, declared

a mistrial, and dismissed the jury.




                                                                         A-5045-16T4
                                        4
                                The Second Trial

      Before the start of the second trial, defense counsel moved to dismiss the

indictment on double jeopardy grounds. After hearing oral argument from

counsel, the judge denied defendant's motion. The judge submitted a five-page

memorandum of opinion in support of his decision in which he concluded that

this was "merely an unfortunate occurrence." The judge found that neither party

engaged in any conduct to bring about this outcome. Most importantly, the

judge did not find any evidence that defendant was prejudiced by the delay. "In

fact, the [c]ourt finds that the risk of prejudice to [d]efendant, caused by a

potentially tainted jury, was eliminated by the mistrial."

      The second trial began on January 9, 2017.             After the attorneys'

presentation and closing arguments, jury deliberation began on January 18,

2017. The following day, before the start of deliberations, juror number 11

presented a note to the jury manager. Outside the presence of the jury, the judge

addressed the attorneys directly and stated for the record: "I instructed the jury

manager to not allow the jury to continue to deliberate until such time as we

[address] this note." The note from juror number 11, marked C-5 in evidence,

asked: "can a juror take notes from a trial on a cellphone?"




                                                                         A-5045-16T4
                                        5
      The trial judge placed on the record the process he was going to follow to

determine the best way to answer the juror's question. He planned to question

each juror individually to ascertain three things: (1) "if they're aware of it[;]" (2)

"if they did it[;]" and (3) "if it affects their ability to continue to proceed . . . ."

The judge also stated that he would "instruct all of them that they're not to

discuss this issue with each other amongst themselves." Counsel consented to

the judge's proposed approach.

      The judge began by asking juror number 11 what caused her to write the

note. The juror responded that in the course of discussing the case, a particular

juror said "they wanted to check their notes . . . ." These "notes" were located

on the juror's cellphone. Juror number 11 made clear that she did not see any of

the notes. In response to the judge's questions, Juror number 11 clarified: "I do

not believe the notes were taken . . . [d]uring the actual trial. I believe they were

taken during breaks or after the trial outside the courthouse." She also referred

to the note-taking juror as a "bully."

      According to juror number 11, not including herself, two other jurors

heard the conversation she had with the note-taking juror. This occurred at

approximately 3:15 p.m. the previous day. The judge noted for the record that

was the first day of jury deliberations, which began "somewhere around 1:45



                                                                               A-5045-16T4
                                           6
[p.m.]." When the judge asked her if she had anything else to say about her

observations of what occurred, Juror number 11 responded:

            No, just that I felt that it was a disadvantage, you know,
            and I felt that it was not my interpretation of the ruling
            was no cellphones on during deliberations and any
            video, audio anything capable of those things were
            supposed to be off during deliberations.

      She also stated the juror who took the notes had an unfair advantage over

her in deliberations because she could not take notes. She told the judge that

she did not discuss this concern with any other juror, but she saw two jurors who

were seated next to her at the time that may have overheard it. Juror number 11

assured the judge that this experience did not undermine her oath to assess the

evidence fairly and impartially. However, she also said that the note-taking

juror's participation in the discussions would not be of any value to her at this

point. The judge directed juror number 11 to return to the jury room and gave

her the following instructions:

            THE COURT: I'm going to ask you not to discuss what
            happened.

            JUROR NUMBER 11: I won't.

            THE COURT: If you feel intimidated in any manner
            when you go in there, please write another note
            immediately and I'll address it immediately, okay, so
            you're not to discuss it. . . . I didn’t want to ask you in
            open court to identify the person who was using the cell

                                                                          A-5045-16T4
                                        7
phone, but I have to ask you that and I want to explain
to you the process since you brought that to my
attention. Now, I have an obligation in the presence of
the attorneys and . . . defendant to ask you about that,
find out from he or she what happened and get more
facts from that person, and then I want to also have to
next go through each one of the jurors to see what they
know. I'll ask their feelings of it. You did the right
thing. Okay?

JUROR NUMBER 11: That's what I like doing, the
right thing, and if I don't know, ask.

THE COURT: We have to make sure this is a fair
process.

JUROR NUMBER 11: I want it to be fair.

THE COURT: So I'll try to make an inquiry of those
people.

JUROR NUMBER 11: They're going to know it's me.

THE COURT: We can address that. Okay. And then I
have to ask, have to go through each of the jurors just
to see what they know, all right? So we still have an
impaneled jury, I still have to continue to do due
diligence and investigate and I really appreciate you
fulfilling your obligation and following my
instructions, and I'm just going to ask you to be patient
and be calm. If there's any problem in that room, if you
feel uncomfortable, you are to immediately write a note
to myself, okay?

JUROR NUMBER 11: I already feel a little
uncomfortable.




                                                            A-5045-16T4
                           8
            THE COURT: I'm sure you do, but we'll make sure that
            justice is served to everyone and proceed, okay? Thank
            you very much.

      With the assistance of juror number 11, the judge identified juror number

8 as the juror who allegedly took notes of the trial with his cellphone. Before

interviewing juror number 8, the judge conferred with counsel to determine if

they had any questions. Both attorneys indicated they did not. The judge began

his interview of juror number 8 by stating that "[a] concern [had] been raised

that one of the jurors may have been taking notes on a cellphone." Juror number

8 immediately admitted he took notes during breaks, but did not show them to

anyone. When the judge asked him why he did this, juror number 8 explained:

"Just, I would like it to a report, anybody writes reports, just so that anything

that I thought was important or that I should, you know, keep in my memory, I

took a note, because, you know, sometimes you forget."

      In response to the judge's question, juror number 8 confirmed he remained

capable of fairly and impartially reviewing the evidence. With respect to the

notes, the judge asked:

            THE COURT: The other question I have [is] are you
            able now to disregard those notes and depend upon the
            combined recollections of all the jurors of what
            happened in the testimony?

            JUROR NUMBER 8: Yes, sir.

                                                                        A-5045-16T4
                                       9
            THE COURT: And, sir, do you understand that if you
            forget something, if you wanted to listen to an aspect of
            the testimony, wanted a read-back of what was said,
            you can write me a note and I'll accommodate you.

            JUROR NUMBER 8: I do understand that now, sir, yes.

      Juror number 8 also stated that he did not mention he took notes about the

trial nor discuss the content of the notes with any other juror. When the judge

asked him if he had anything else to say, he stated:

            JUROR NUMBER 8: I didn't do it maliciously. I just
            want to -- I'm from the mindset that I want to do
            everything straight and narrow, I don't want to make
            mistakes, something as important as this is. That's the
            only reason. It wasn't to do anything else but to try to
            make the correct decision, I'm very much -- I go by
            instructions, I like to keep everything dotted i's crossed
            t's, I don't want to make mistakes. That's the only reason
            I did that.

The judge excused juror number 8 and directed him to return to the jury room

and not discuss what had transpired with anyone.

      The judge next interviewed juror number 6. The judge advised juror

number 6 that "one of the jurors may have utilized a cellphone to take notes."

Juror number 6 told the judge that he became aware of it the day before, during

deliberations. When the judge asked him to elaborate on what he saw, juror

number 6 stated: "I didn't see anything but his reading his notes from his



                                                                         A-5045-16T4
                                       10
cellphone." He also said he did not discuss this event with any of his fellow

jurors and the notes did not influence him in any way. The judge excused juror

number 6 from the courtroom and admonished him not to discuss this matter

with his fellow jurors.

      The judge next interviewed juror number 10; his testimony mirrored juror

6's testimony. The remaining jurors the judge interviewed did not have any

knowledge of the cellphone notes, stated they did not take any notes, and

confirmed they could serve impartially. At the conclusion of this comprehensive

review, the judge invited counsel to state their position on the record. Both

defense counsel and the prosecutor asked the court to remove juror number 8

from the jury.

      Defense counsel argued juror number 11 stated that the jurors were

discussing an "issue" when juror number 8 referred to his notes, elevated his

voice, and caused her to feel intimidated. According to juror number 11, juror

number 8 smothered the jury's discussion and acted like a "bully." Defense

counsel also argued that juror number 8 admitted to deliberately violating the

court's written instructions to the jury prohibiting both note-taking and reliance

on cellphones.     Under these circumstances, defense counsel argued that




                                                                         A-5045-16T4
                                       11
"fairness" and "regard to the process itself" provided a sufficient legal basis for

the court to remove juror number 8 "and replace him with the first alternate."

      The prosecutor joined defense counsel's application for the removal of

juror number 8.

             I don't think that he intentionally ignored your Honor's
             instructions to not take notes. I'm hearing him and
             evaluating his credibility, I do think it was at least to
             see how it could have been an honest mistake. That
             said, the State is concerned that juror number 8 is in a
             superior position of knowledge than the other 11 jurors,
             and I base that on the fact that the other 11 jurors are in
             that room recalling testimony that was as long as nine
             days ago at this point.

      The judge again brought juror number 8 to the courtroom outside the

presence of the remaining jurors to solicit more details about the use of the

cellphone:

             THE COURT: Just had a couple of further questions.

             JUROR NUMBER 8: Yes, sir.

             THE COURT: First of all, when did you start taking
             these notes, what point in the trial?

             JUROR NUMBER 8: To be honest, I can't give you. I
             really didn't know, sir. I mean –

             THE COURT: Did you do it throughout the trial?

             JUROR NUMBER 8: No. Honestly, no. Not the whole
             entire time or did I do it on any regular basis, just if I

                                                                           A-5045-16T4
                                         12
thought about it. I don't remember -- I wasn't
necessarily coming back and immediately doing
something -- it just. I couldn't give you an exact
timeframe.

THE COURT: And in your notes, is it basically a
summary of what happened in the courtroom?

JUROR NUMBER 8: It's more like facts, you know
what I mean, like something that I thought, you know,
I don't know how to describe it, like maybe
inconsistencies or something like that.

THE COURT: In all the facts that you recorded, were
they facts -- was all information contained in the
confines of these four walls of this courtroom?

JUROR NUMBER 8: I don't understand your question,
sir.

THE COURT: The notes that you wrote that contained
facts, perhaps your opinions of inconsistencies --

JUROR NUMBER 8: Right.

THE COURT: Was it all based on information solely in
this courtroom?

JUROR NUMBER 8: Yes, yes, sir.

THE COURT: In other words, did the notes also contain
anything, any outside research you may have done?

JUROR NUMBER 8: No, no, I didn't do any of that, sir.

THE COURT: So the notes were shortly after the
proceeding.



                                                        A-5045-16T4
                         13
            JUROR NUMBER 8: Yes.

            ....

            THE COURT: Did anyone else in your home have
            access to your phone?

            JUROR NUMBER 8: No, sir. Nobody touches it. My
            kids don't, my wife doesn't, no.

      Based on this record, the judge denied the parties' request to remove juror

number 8 and replace him with an alternate juror. The judge instructed juror

number 8 to delete the notes on his cellphone, disregard anything he wrote, and

base his participation in the deliberations on his recollection of the testimony at

trial. The judge also charged the jury to rely on their collective recollection of

the evidence presented at trial and directed them to disregard any reference to

the notes. The jury renewed its deliberations and continued without interruption

until it announced it had reached a unanimous verdict finding defendant guilty.

                                        II

      Defendant raises the following arguments.

            POINT I

            THE TRIAL JUDGE IMPROPERLY DECLARED A
            MISTRIAL    OVER    DEFENSE     COUNSEL'S
            OBJECTION    WITHOUT      A    "MANIFEST
            NECESSITY" TO DO SO; HENCE, THE DENIAL OF
            THE MOTION TO BAR THE SECOND TRIAL AS A
            VIOLATION OF DEFENDANT'S FEDERAL AND

                                                                          A-5045-16T4
                                        14
            STATE CONSTITUTIONAL RIGHTS AGAINST
            DOUBLE JEOPARDY SHOULD BE REVERSED.

            POINT II

            DEFENDANT WAS DENIED HER RIGHTS TO DUE
            PROCESS AND AN IMPARTIAL JURY WHEN A
            MEMBER OF THE JURY IMPROPERLY TOOK
            NOTES AND THEN USED THOSE NOTES IN
            DELIBERATION; WHEN ANOTHER JUROR
            BROUGHT THE MATTER TO THE COURT'S
            ATTENTION, THE TRIAL JUDGE IMPROPERLY
            LEFT THE OFFENDING JUROR ON THE JURY
            OVER THE OBJECTION OF BOTH DEFENSE
            COUNSEL AND THE PROSECUTOR -- BOTH OF
            WHOM ASKED FOR THE JUROR TO BE
            DISMISSED AND THE JURY TO RESUME
            DELIBERATIONS ANEW WITH A NEW MEMBER.

      The decision whether to grant a mistrial rests within the sound discretion

of the trial judge. State v. LaBrutto, 114 N.J. 187, 207 (1989). As an appellate

court, we are bound to uphold such a decision absent a clear showing that the

trial judge abused his or her "discretion or that the defendant suffered actual

harm." Ibid. Furthermore, "[w]here a trial court declares a mistrial because of

a substantial concern that the trial's result may be tainted, 'the trial judge's

determination is entitled to special respect.'" State v. Loyal, 164 N.J. 418, 436

(2000). We must also apply an abuse of discretion standard when reviewing a

trial judge's decision to remove and substitute a deliberating juror. State v.

Musa, 222 N.J. 554, 564-65 (2015).

                                                                        A-5045-16T4
                                       15
      An abuse of discretion "arises when a decision is 'made without a rational

explanation, inexplicably departed from established policies, or rested on an

impermissible basis.'"   Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571

(2002)   (quoting Achacoso–Sanchez       v.   Immigration     &    Naturalization

Serv., 779 F.2d 1260, 1265 (7th Cir. 1985)). An appellate court defers to a trial

court's finding of fact, provided it is "supported by adequate, substantial and

credible evidence." Pitney Bowes Bank, Inc. v. ABC Caging Fulfillment, 440

N.J. Super. 378, 382 (App. Div. 2015). But "[a] trial court's interpretation of

the law and the legal consequences that flow from established facts are not

entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of

Twp. of Manalapan, 140 N.J. 366, 378 (1995).

      Against this standard of review, we first address defendant's argument

attacking the trial judge's decision to declare a mistrial sua sponte in the first

trial. Defendant argues the trial judge erred in denying her motion to dismiss

the indictment on federal and state double jeopardy grounds, because there was

no "manifest necessity" requiring the grant of a mistrial over her counsel's

objection. The State maintains the trial judge properly exercised his authority

in granting a mistrial because agents of the ACPO were required to interview

individual jurors in connection with an unrelated criminal investigation. We



                                                                         A-5045-16T4
                                       16
conclude the trial judge properly exercised his discretionary authority to declare

a mistrial. The jury's role to impartially carry out its fact-finding role was

irreparably compromised when a number of jurors witnessed the surreptitious

activities of this third-party.    This prompted the direct involvement of

investigators from the ACPO, the same law enforcement agency that was

prosecuting defendant in this case.

      We start our analysis by reaffirming certain bedrock principles of our

criminal justice system. The Fifth Amendment of the United States Constitution

provides, in relevant part, that no person shall "be subject for the same offense

to be twice put in jeopardy of life or limb." U.S. Const. amend. V. The New

Jersey Constitution provides: "[n]o person shall, after acquittal, be tried for the

same offense." N.J. Const. art. I, ¶ 11. This protection against being placed

twice in jeopardy for the same offense is also codified in N.J.S.A. 2C:1-9.

      The defense of double jeopardy does not require that a previous trial result

in a not guilty verdict. State v. Farmer, 48 N.J. 145, 169 (1966). Jeopardy

attaches when a jury is impaneled and sworn, and at that point, a defendant is

ordinarily entitled to the case proceeding to a jury verdict. State v. Dunns, 266

N.J. Super. 349, 362 (App. Div. 1993); Farmer, 48 N.J. at 169. If the jury is

discharged prior to the verdict, in the absence of defendant's consent or without



                                                                          A-5045-16T4
                                        17
a legal basis, "the abortive ending is equivalent to acquittal and bars retrial."

Farmer, 48 N.J. at 169.

      However, there are certain scenarios where a jury can be discharged

before reaching a verdict, where the protection against double jeopardy is

inapplicable. Dunns, 266 N.J. Super at 363. One of these scenarios has been

codified under N.J.S.A. 2C:1-9(d)(3). Once a jury has been impaneled and

sworn, the prohibition against double jeopardy does not apply provided "[t]he

trial court finds that the termination is required by a sufficient legal reason and

a manifest or absolute or overriding necessity." N.J.S.A. 2C:1-9(d)(3). Thus,

defendant's double jeopardy argument depends on whether the trial judge's sua

sponte declaration of a mistrial was predicated on a "manifest necessity."

      In Loyal, our Supreme Court emphasized that the declaration of a mistrial

depends on the unique facts of the case and is within the discretion of the trial

court. 164 N.J. at 435. The Court identified the following questions to guide a

judge to determine whether a mistrial declaration is warranted:

            [1] Did the trial court properly exercise its discretion so
            that a mistrial was justified? [2] Did it have a viable
            alternative? If justified, what circumstances created the
            situation? [3] Was it due to prosecutorial or
            defense misconduct? [4] Will a second trial accord with
            the ends of public justice and with proper judicial
            administration? [5] Will the defendant be prejudiced
            by a second trial, and if so, to what extent?

                                                                          A-5045-16T4
                                        18
              [Id. at 436-37 (quoting State v. Rechtschaffer, 70 N.J.
              395, 410-411 (1976)).]

      In Farmer, Justice Francis, writing for a unanimous Court, expounded

upon the principles underpinning this constitutional protection:

              [T]he double jeopardy protection does not mean that
              once an accused has been put on trial regularly, the
              proceeding must run its ordinary course to judgment of
              conviction or acquittal. The rule does not operate so
              mechanistically. If some unexpected, untoward and
              un[-]designed incident or circumstance arises which
              does not bespeak bad faith, inexcusable neglect or
              inadvertence or oppressive conduct on the part of the
              State, but which in the considered judgment of the
              trial court creates an urgent need to discontinue the trial
              in order to safeguard the defendant against real or
              apparent prejudice stemming therefrom, the Federal
              and State Constitutions do not stand in the way of
              declaration of a mistrial. And this is true even if the
              conscientious act of the trial judge may be
              characterized as the product of "extreme solicitude" or
              "overeager solicitude" for the accused.

              [48 N.J. at 174.]

      When we apply these fundamental constitutional principles to the facts in

this case, it becomes axiomatic that the trial judge properly declared a mistrial

sua sponte.     The members of this jury were about to be interviewed by

investigators from the ACPO. It is highly likely that these jurors would be called

as witnesses for the State in this unrelated trial. These circumstances created a



                                                                            A-5045-16T4
                                          19
manifest necessity for a mistrial.      Finally, the mistrial did not prejudice

defendant.   At the time the judge declared the mistrial counsel had just

completed their opening statements and no witnesses had testified.

                                        III

      We next address defendant's arguments attacking the legal viability of the

second trial that led to her conviction. Defendant argues the trial judge erred

when he denied the joint motion made by defense counsel and the prosecutor to

remove juror number 8 and replace him with an alternate juror. We have

described at length the facts that led to this joint application. Defendant argues

the juror's decision to write notes using his cellphone, in direct defiance of the

judge's instruction, violated her right to an impartial jury and due process of law,

as guaranteed by our federal and state constitutions. The State argues that once

deliberations were underway, the trial judge properly applied Rule 1:8-2(d)(1)

to support his decision to deny counsel's joint application to remove juror

number 8 from the jury.

      "It is the trial judge's duty to investigate any claims that may affect the

integrity of the jury's deliberations." State v. Gleaton, 446 N.J. Super. 478, 518

(App. Div. 2016) (citing State v. Dorsainvil, 435 N.J. Super. 449, 487 (App.

Div. 2014)). "Rule 1:8-2(d)(1) governs the removal and substitution of jurors



                                                                           A-5045-16T4
                                        20
in civil and criminal trials, both before and after the commencement of

deliberations." State v. Jenkins, 182 N.J. 112, 123 (2004). Once deliberations

have begun, a juror may be replaced only under certain circumstances. Id. at

123-24. A deliberating juror may only be replaced with an alternate juror

because of death, illness, or other inability to continue. R. 1:8-2(d)(1).

      Here, the only basis to remove juror number 8 was "inability to continue."

The trial judge needed to determine whether the juror's failure to adhere to the

court's instruction not to take notes constituted an "inability to continue" under

Rule 1:8-2(d)(1). Our Supreme Court has narrowly construed this ground for

removing a juror. Jenkins, 182 N.J. at 124. In order to protect a defendant's

right to a fair trial, substitution of a deliberating juror is forbidden if the

"removal is in any way related to the deliberative process." Ibid. For a juror to

be found unable to continue, the record must "adequately establish that the juror

suffers from an inability to function that is personal and unrelated to the juror's

interaction with the other jury members." Id. at 125 (citing State v. Hightower,

146 N.J. 239, 254 (1996)).

      The "inability to continue" standard is difficult to meet. Substitution has

been invoked as "a last resort" in cases where jurors have been found unable to

continue because of financial hardship, issues of great emotional distress that



                                                                             A-5045-16T4
                                        21
impair the juror's judgment, and a brazen disregard of a trial court's

unambiguous instruction. Id. at 125-26. In these situations, trial judges are

empowered to make credibility determinations of a juror's demeanor during voir

dire to determine whether the inability to continue standard has been met. See

State v. Singletary, 80 N.J. 55, 63 (1979).

      In State v. Holloway, this court approved the trial judge's removal of a

deliberating juror when the juror violated the court's unambiguous and repeated

instructions not to discuss the case with anyone outside of the deliberative

process. 288 N.J. Super 390, 404 (App. Div. 1996). The discharged juror

admitted she improperly had a conversation with her relative about the merits of

the case. Ibid. The juror also admitted the conversation influenced her to some

degree. Ibid. Under these circumstances, the trial judge concluded the juror

was unable to remain on the jury because her judgment of the case had been

irreparably compromised by information obtained from sources outside the

deliberative process. Stated differently, this juror was no longer capable of

serving fairly and impartially. 1 Ibid.




1
  Despite approving the removal of the juror, the Supreme Court in Jenkins
expressly disapproved "of that part of the holding in State v. Holloway that
allowed a substitute juror to join a jury that had announced its verdict to
convict." 182 N.J. at 133, n.2.
                                                                        A-5045-16T4
                                          22
      Here, in sharp contrast to the discharged juror in Holloway, juror number

8 unequivocally affirmed his commitment to evaluate the evidence in the case

fairly and impartially. The judge also found juror number 8 to be "extremely

credible and contrite" and instructed him to delete the notes from his cellphone

and to rely only on his recollection of the evidence and on the collective

recollection of his fellow jurors during deliberations. The judge expressly found

that the notes did not contain any outside sources of information, nor relate to

anything that occurred outside the courtroom. Under these circumstances, we

hold the trial judge's decision to retain juror number 8 on the jury was supported

by the record and constituted a valid exercise of his discretionary authority.

      Defendant's unsupported assertion that juror number 8's note-taking

tainted the jury's deliberations with impermissible bias against her lacks

sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). The

record shows the judge instructed the jury to disregard any discussions that may

have referenced the notes in anyway. Absent evidence otherwise, a jury is

presumed to follow the trial court’s instructions. State v. Burns, 192 N.J. 312,

335 (2007).

      Affirmed.




                                                                         A-5045-16T4
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