                                                       SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)

                           State of New Jersey v. Humfrey A. Musa (A-78-13) (073268)

Argued March 2, 2015 -- Decided August 18, 2015

ALBIN, J., writing for a unanimous Court.

          The issue in this appeal is whether the trial court properly impanelled an alternate juror pursuant to Rule
1:8-2(d)(1), after the juror failed to appear for deliberations, without first inquiring of the jury about the reasons for
the juror’s absence.

         On March 25, 2010, at approximately 5:25 p.m., Booney Davidson was walking in the City of East Orange,
on his way home from work, when he was approached by a person he later identified as defendant. Defendant, who
had been walking behind two or three other men, said to Davidson, “pops, give me your money.” Thinking the
remark was made in jest, Davidson replied, “you kidding[?]” Defendant then pushed Davidson against a wall and
snatched $31 from Davidson’s pants pocket. Defendant left the scene, and Davidson continued on his way home.
When Davidson came upon a police officer, he reported the crime and described the men. A police dispatch about
the robbery followed.

         Not far from the site of the robbery, East Orange Police Detective Robert Wright observed four men,
including defendant, generally fitting the description in the dispatch. Detective Wright and his partner detained the
four men while another officer transported Davidson to the scene. On his arrival, Davidson identified defendant as
the robber and cleared the other men of having any involvement in the crime. Defendant was then placed under
arrest. From defendant’s left front pocket, the police recovered $31 in denominations that matched those stolen
from Davidson. At headquarters, Davidson again identified defendant, this time from an array of eight photographs.

         Defendant was indicted for second-degree robbery. A jury trial was conducted on February 2, 3, and 4,
2011. After the State’s presentation, the defense rested without calling any witnesses. In summation, defense
counsel raised the defense of mistaken identification, but neither side requested an identification charge. On the
second day of trial, February 3 at 11:57 a.m., the jury began its deliberations. At 4:18 p.m., in the presence of
counsel, the court acknowledged receipt of a note from the jury. The top of the note read: “Still undecided. What
do we do now?” Below that message, the jury listed three questions: “How much time are we allotted tonight? Can
a particular juror be excused from the case? And can we get an easel with a marker?”

         The court told the jurors that they would adjourn for the evening and continue their deliberations in the
morning. It also pledged to have an easel and marker available when they began their session. The court responded
to the question whether “a particular juror [could] be excused from the case” by generally explaining that a juror
could not be excused for reasons related to differences with other jurors, but could for personal reasons, such as
illness. The next day, Juror Number 2 did not report to the courtroom at 9:30 a.m., as required. The court had calls
made to locate the juror. By 11:23 a.m., the court decided, over the objection of defense counsel, to replace Juror
Number 2 with an alternate juror. The court declined defense counsel’s request that the jurors be questioned about
whether Juror Number 2 was the subject of the previous day’s note. The jury deliberated for one hour and fifty
minutes and then returned a verdict of guilty on the charge of second-degree robbery.

          Defendant moved for a new trial on the ground that the court erred in substituting an alternate juror for
missing Juror Number 2. The court denied that motion, determining that the note submitted by the jury did not
provide meaningful information from which any firm conclusions could be drawn. More specifically, the court
observed that nothing in the record supported the assumption that “there was a single dissenting juror,” that “the jury
had already come to an agreement, but for the presence of that single juror,” or that “Juror Number 2 . . . was the
phantom dissenter.” The court also noted the complete absence of any evidence that Juror Number 2 possessed a
bias or some other prejudicial disposition that tainted the deliberations. In addition, the court found that the
deliberations had not progressed so far that substitution of an alternate was precluded.
         In an unpublished decision, the Appellate Division reversed the conviction, finding that the trial court erred
in making the substitution under Rule 1:8-2(d)(1) before exploring “whether the juror’s failure to return to court was
for reasons personal to the juror or due to the juror’s interaction with the jury.” The Appellate Division remanded
for a new trial and directed that “the [trial] court should charge the jury on identification since identification is a
significant issue in this case.”

         The Supreme Court granted the State’s petition for certification. 217 N.J. 296 (2014).

HELD: Juror Number 2’s failure to appear for the second day of deliberations amounted to an “inability to
continue” under Rule 1:8-2(d)(1) and substituting an alternate juror for the missing juror was permissible. The
matter is remanded to the Appellate Division to address the issue it did not reach: whether the trial court’s failure to
give an identification charge denied defendant a fair trial.

1. Rule 1:8-2(d)(1) is intended to strike a balance between a defendant’s right to a fair trial decided by an impartial
jury and judicial economy. Nevertheless, a juror may not be replaced if to do so would “pose a threat to the integrity
or independence of the deliberative process.” State v. Jenkins, 182 N.J. 112, 124 (2004). The removal of a juror
because he is disputatious and does not share the views of other jurors would undermine the very essence of the free
and open debate that is expected of jury deliberations. For that reason, the Court has “restrictively interpreted the
phrase ‘inability to continue’ in Rule 1:8-2(d)(1) to . . . forbid[] juror substitution when a deliberating juror’s
removal is in any way related to the deliberative process.” Ibid. The removal must be for reasons personal to the
juror. Substituting an alternate juror for a deliberating juror who fails to report for service is permissible for the
same reason that substitution is allowed under Rule 1:8-2(d)(1) for illness and death. Common sense suggests that
an absent juror fits into the category of “inability to continue” because a juror who is not present in the jury room is
unable to participate in any way -- as an assenter, dissenter, or passive listener -- in the deliberations. The court does
not have to cede to the absent juror control over the fate of the trial. After waiting a reasonable interval and making
inquiries to locate the missing juror, the court has the discretion to proceed with the trial and substitute an alternate
juror on the panel. (pp. 13-18)

2. Any inquiry to determine whether a deliberating juror should be removed and replaced with an alternate must be
carefully circumscribed to “protect the confidentiality of jury communications.” State v. Ross, 218 N.J. 130, 147
(2014). Generally, if a court inquires of a juror on the subject of “inability to continue,” the questions must be
carefully crafted to elicit answers that only bear on reasons personal to the juror and that in no way elicit the drift of
the deliberations or voting inclinations of any juror. This is not to suggest that there is an inflexible rule that applies
to the myriad scenarios that may call for judicial inquiry of a jury, including scenarios involving the introduction of
taint into the jury room. Suffice it to say that inquiry into the deliberative process -- delving into the thoughts and
views of jurors -- is forbidden. (pp. 18-20)

3. The Court does not know whether the third question -- “Can a particular juror be excused from the case?” -- was
provoked because of a juror’s illness, need to attend to a sick relative or child-care responsibilities, financial
hardship due to absence from work, discord with other jurors, or some other reason. Defendant’s supposition that
the note indicated “something unusual and troubling [was] going on in the jury room” is nothing more than
speculation. In addition, the Court does not know whether Juror Number 2 was the same juror referred to in the
note. But even if the Court were to engage in the unwarranted assumption that Juror Number 2 was the subject of
the note, she had no right to purposely absent herself from jury service without permission of the court -- whatever
the reason. A single juror cannot nullify jury deliberations -- and the entire trial process -- by refusing to be
physically present in the jury room. Although some limited form of questioning might have been reasonable, the
Court cannot conclude that the decision not to pursue an inquiry in this delicate area constituted an abuse of
discretion warranting a mistrial. Questioning, if not properly narrowed, had the potential to impermissibly infringe
on the jury’s deliberative process. Juror Number 2’s failure to appear for the second day of deliberations amounted
to an “inability to continue” under Rule 1:8-2(d)(1) and substituting an alternate juror for the missing juror was
permissible. (pp. 20-25)

         The judgment of the Appellate Division is REVERSED and defendant’s conviction for second-degree
robbery is REINSTATED. The matter is REMANDED to the Appellate Division to address the issue it did not
reach: whether the trial court’s failure to give an identification charge denied defendant a fair trial.

                                                            2
         CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, PATTERSON, and SOLOMON; and
JUDGE CUFF (temporarily assigned) join in JUSTICE ALBIN’s opinion. JUSTICE FERNANDEZ-VINA
did not participate.




                                            3
                                      SUPREME COURT OF NEW JERSEY
                                        A-78 September Term 2013
                                                 073268

STATE OF NEW JERSEY,

    Plaintiff-Appellant,

         v.

HUMFREY A. MUSA,

    Defendant-Respondent.


         Argued March 2, 2015 – Decided August 18, 2015

         On certification to the Superior Court,
         Appellate Division.

         Stephen A. Pogany, Special Deputy Attorney
         General/Acting Assistant Prosecutor, argued
         the cause for appellant (Carolyn A. Murray,
         Acting Essex County Prosecutor, attorney).

         Marcia H. Blum, Assistant Deputy Public
         Defender, argued the cause for respondent
         (Joseph E. Krakora, Public Defender,
         attorney).

         Emily R. Anderson, Deputy Attorney General,
         argued the cause for amicus curiae Attorney
         General of New Jersey (John J. Hoffman,
         Acting Attorney General, attorney).


    JUSTICE ALBIN delivered the opinion of the Court.

    In this criminal case, at the conclusion of the first day

of jury deliberations, the jury sent a note to the court asking:

“Can a particular juror be excused from the case?”   The court

responded to the question appropriately, generally explaining


                                1
that a juror could not be excused for reasons related to

differences with other jurors, but could for personal reasons,

such as illness.   The court gave the jurors the opportunity to

raise the issue the next day at sidebar.   No one did so.

    The following day, Juror Number 2 did not appear for

service.   Over the objection of defense counsel, the trial court

impanelled an alternate juror.   The court declined defense

counsel’s request that the jurors be questioned about whether

Juror Number 2 was the subject of the previous day’s note.

After the jury returned a guilty verdict, defense counsel moved

for a mistrial based on the juror substitution.   That motion was

denied.

    The Appellate Division reversed the conviction, finding

that the trial court erred in making the substitution under Rule

1:8-2(d)(1) before exploring “whether the juror’s failure to

return to court was for reasons personal to the juror or due to

the juror’s interaction with the jury.”

    We do not agree with the Appellate Division that the trial

court’s decision to place an alternate juror on the panel,

without inquiring of the jury about the reasons for Juror Number

2’s absence, was a fatal error requiring that the jury’s verdict

be overturned.   The court was well within its discretion to make

the juror substitution under Rule 1:8-2(d)(1) -- even without an

inquiry of the jury.   That does not mean it would have been

                                 2
unreasonable for the trial court to make some limited inquiry,

provided it would not have exposed any information about the

deliberative process.

    Here, the court did not remove the juror from the panel.

Instead, the juror either did not return intentionally or faced

some disabling circumstance that prevented her from returning.

The trial court was not required to declare a mistrial because

of Juror Number 2’s non-appearance.

    A juror’s unexplained absence from the courthouse on

deliberation day cannot, alone, sabotage a trial.    Moreover, it

is difficult to imagine that an inquiry of the jury would have

made a difference.   The court would not have been compelled to

scuttle the trial even had it known that the juror was unable to

participate for personal reasons or was unwilling to come to the

courthouse to participate.     Under those circumstances, a juror

cannot control the fate of a trial.     Importantly, we do not know

why Juror Number 2 did not return for the second day of

deliberations.   Unfounded speculation cannot be the basis for

overthrowing a jury verdict.

    We therefore reverse the judgment of the Appellate Division

and remand to that court for consideration of an unresolved

issue:   whether the trial court’s failure to give an

identification charge denied defendant a fair trial.

                                  I.

                                  3
                                  A.

    Defendant Humfrey A. Musa was indicted for second-degree

robbery, N.J.S.A. 2C:15-1.    A jury trial was conducted on

February 2, 3, and 4, 2011.    The testimony of Booney Davidson,

the victim, and two police officers detailed the following

events.

    On March 25, 2010, at approximately 5:25 p.m., Davidson was

walking on a street in the City of East Orange, on his way home

from work, when he was approached by a person he later

identified as defendant.     Defendant, who had been walking behind

two or three other men, said to Davidson, “pops, give me your

money.”   Thinking the remark was made in jest, Davidson replied,

“you kidding[?]”     Defendant then pushed Davidson against a wall

and snatched $31 from Davidson’s pants pocket.     Defendant left

the scene, and Davidson continued on his way home.     When

Davidson came upon a police officer, he reported the crime and

described the men.    A police dispatch about the robbery

followed.

    Not far from the site of the robbery, East Orange Police

Detective Robert Wright observed four men, including defendant,

generally fitting the description in the dispatch.     Detective

Wright and his partner detained the four men while another

officer transported Davidson to the scene.    On his arrival,

Davidson identified defendant as the robber and cleared the

                                  4
other men of having any involvement in the crime.     Defendant was

then placed under arrest.    From defendant’s left front pocket,

the police recovered $31 in denominations that matched those

stolen from Davidson.    At headquarters, Davidson again

identified defendant, this time from an array of eight

photographs.

                                  B.

    After the State’s presentation, the defense rested without

calling any witnesses.    In summation, defense counsel raised the

defense of mistaken identification, but neither side requested

an identification charge.

    On the second day of trial, February 3 at 11:57 a.m., the

jury began its deliberations.    At 4:18 p.m., in the presence of

counsel, the court acknowledged receipt of a note from the jury.

The top of the note read:    “Still undecided.   What do we do

now?”   Below that message, the jury listed three questions:

“How much time are we allotted tonight?    Can a particular juror

be excused from the case?    And can we get an easel with a

marker?”

    The court told the jurors that they would adjourn for the

evening and continue their deliberations in the morning.      It

also pledged to have an easel and marker available when they

began their session.     The court gave the following response to



                                  5
the question whether “a particular juror [could] be excused from

the case”:

         Generally the answer is no. You have the 12,
         you’ve been randomly selected, 12 of you heard
         the case. You have to hear the case and decide
         the case.

              Now, if a Juror wishes to be excused, it
         has to be for a good reason, it can’t be just
         because you’re not getting along with all the
         other Jurors, that’s not how it works. But if
         someone has a particular issue or wishes to be
         heard in regard to a particular issue, you can
         write us a note tomorrow morning.        We’ll
         certainly have the Juror come out separately
         and we’ll hear the issue and we’ll decide from
         there.

              In open court and so forth, the general
         answer is no, but we also have alternates
         [who] are here, in case somebody becomes ill
         or some other issues happen[] or someone has
         to leave. We have alternates and that’s the
         reason. It has to be for a very particular
         reason, not just because you’re not getting
         along and you don’t want to be here any more.

         . . . .

         We’ll see you tomorrow morning at 9:30.

    The next day, February 4, Juror Number 2 did not report to

the courtroom at 9:30 a.m., as required.   The court had calls

made to locate the juror.   The court personally called the

Hudson County Clerk’s Office, which the juror listed as her

place of employment.   The court was advised that no one by the

juror’s name had a record of employment there.   By 11:23 a.m.,




                                 6
nearly two hours past reporting time, the court decided to

replace Juror Number 2 with an alternate juror.

    Earlier, defense counsel expressed concern that, perhaps,

the juror was involved in an accident or an emergency.     Shortly

before the court’s decision to proceed without Juror Number 2,

defense counsel asked whether “it would be appropriate . . . to

send a note into the Jury to try to find out if Juror number two

was the one that they were referring in that note as the

uncooperating Juror.”   The court decided against taking that

approach and, over defense counsel’s objection, proceeded with

the substitution.

    The court gave the following instruction to the newly

constituted jury:

         As you can see, Juror number two is missing.
         We tried to locate the Juror, we could not
         locate the Juror.       The reason we have
         alternates is for reasons such as this
         particular contingency.

              As you know, Juror number two is not here
         and was excused from the Jury, although I will
         issue the appropriate bench warrant to have
         her come and explain why she’s not here.
         That’s neither here nor there with regard to
         your consideration.

         . . . .

              Now the alternate Juror has been selected
         to take Juror number two’s place. The reason
         that Juror number two was excused was entirely
         irrelevant to this case, it had nothing to do
         with that person’s views on the case nor her
         relationship with other members of the

                                7
            deliberating Jury. Please do not speculate on
            the reason why the Juror was excused.

    After receiving instructions to begin anew its

deliberations with the alternate juror, the jury retired to the

jury room.    The jury deliberated for one hour and fifty minutes

and then returned a verdict of guilty on the charge of second-

degree robbery.

                                 C.

    Defendant moved for a new trial on the ground that the

court erred in substituting an alternate juror for missing Juror

Number 2.    The court denied that motion and stated its reasons

for doing so.   The court determined that the note submitted by

the jury -- “Still undecided.   Can a particular juror be excused

from the case?” -- did not provide meaningful information from

which any firm conclusions could be drawn.    The court rejected

defendant’s assumption that Juror Number 2 was deadlocking the

jury.   The court observed that nothing in the record supported

the assumption that “there was a single dissenting juror,” that

“the jury had already come to an agreement, but for the presence

of that single juror,” or that “Juror Number 2 . . . was the

phantom dissenter.”    The court also noted the complete absence

of any evidence that Juror Number 2 possessed a bias or some

other prejudicial disposition that tainted the deliberations.

Moreover, it emphasized that Juror Number 2 “was never dismissed


                                  8
from service, but could not be located,” thus distinguishing

this case from prior juror-removal cases.     Last, the court found

that the deliberations had not progressed so far that

substitution of an alternate was precluded.

                                 D.

    The court sentenced defendant on the robbery charge to a

six-year prison term subject to the No Early Release Act,

N.J.S.A. 2C:43-7.2, and to a three-year period of supervised

release after his release from custody.   It also imposed all

requisite fines and penalties.

                                 E.

    In an unpublished decision, the Appellate Division reversed

defendant’s conviction based on the court’s failure to make any

inquiry following the jury note, which asked “whether a

‘particular juror could be excused from the case.’”     The

appellate panel remanded for a new trial and directed that “the

[trial] court should charge the jury on identification since

identification is a significant issue in this case.”

    The panel was satisfied that the trial court “made

appropriate inquiries . . . to determine the juror’s

whereabouts” and “did not abuse its discretion in replacing the

juror after nearly two hours had elapsed since the 9:30 a.m.

reporting time.”   The panel, however, concluded that the trial

court erred in failing to explore “whether the juror’s failure

                                 9
to return to court was for reasons personal to the juror or due

to the juror’s interaction with the jury.”   According to the

panel, the receipt of the juror note should have prompted two

responses from the court.   First, upon receipt of the note, “the

court should have sought further clarification from the jury why

it was asking whether a particular juror could be excused.”

Second, after Juror Number 2 failed to appear the next morning,

“the court should have questioned the remaining jurors in an

effort to determine whether there was any connection between the

previous day’s question and Juror 2’s non-appearance.”

The panel concluded that the court’s failure to make those

inquiries in an attempt to learn “why the juror had not

returned” deprived the panel of the ability to carefully

scrutinize the propriety of the juror substitution, thus

requiring reversal.

    We granted the State’s petition for certification.     State

v. Musa, 217 N.J. 296 (2014).    We also granted the motion of the

Attorney General to participate as amicus curiae.

                                 II.

                                 A.

    The State urges that defendant’s conviction be reinstated.

The State argues that the trial court properly substituted the

alternate juror for Juror Number 2 without conducting an

intrusive inquiry of the jury.    According to the State, the

                                 10
trial court appropriately responded to the jury’s question about

excusing a juror and only substituted an alternate after Juror

Number 2 failed to report for service and could not be located.

The State maintains that the Appellate Division’s approach would

have “required the trial judge to invade the jurors’

deliberative process,” revealing the “voting inclinations” of

jurors and thus compromising the sanctity of their

deliberations.    It claims, moreover, that nothing in the record

suggested that “the jury’s deliberations had progressed to the

point where substitution of a juror would have been futile.”     In

short, the State submits that, in applying Rule 1:8-2(d)(1), the

trial court appropriately balanced the twin goals of the right

to a fair trial and judicial economy.

                                 B.

    The Attorney General, as amicus, contends that in the

absence of an “indication of any specific jury irregularity,”

the trial court had no obligation to question jurors about

“whether Juror Two’s disappearance had anything to do with jury

deliberations.”   The Attorney General expresses concern that the

questioning required by the Appellate Division could have

potentially revealed “information about the substance of the

jury’s deliberations, jeopardizing the integrity of the entire

proceeding.”   The Attorney General maintains that the “trial

court took appropriate steps to locate the missing juror” and,

                                 11
when that failed, “properly replaced the juror with an alternate

juror.”

                                 C.

    Defendant claims that the trial judge failed to protect his

right to a fair and impartial jury by choosing “not to question

the jury before seating an alternate juror after one juror went

missing.”    Defendant submits that the jury’s question -- “‘Can a

particular juror be excused from the case?’” -- “suggest[ed]

that something unusual and troubling [was] going on in the jury

room.”    In defendant’s view, the jury question “indicate[d]

either that a particular juror want[ed] to be excused, or that

the other 11 jurors want[ed] to get rid of the twelfth, or,

possibly, both.”    From that premise, defendant argues that “the

judge should have made an effort to ensure that whatever caused

the jury to ask about getting rid of a deliberating juror had

not affected its ability to reach an impartial verdict.”

Defendant complains that the “judge denied even counsel’s modest

request that, before seating an alternate, he at least try to

find out if the absent juror was the subject of the previous

day’s note.”   Defendant states that the judge first had “to

determine whether the juror must be dismissed.”    Defendant

claims that no reported case in this jurisdiction treats a

juror’s unexplained absence as an “inability to continue” under

Rule 1:8-2(d)(1) and therefore as a basis for juror removal.

                                 12
According to defendant, “the trial judge failed in his duty to

ensure that deliberations were not tainted by whatever had

driven the jury to ask about getting rid of a juror.”   For those

reasons, defendant urges that we affirm the Appellate Division’s

reversal of his conviction.

                               III.

                                A.

    Our review of a trial court’s decision to remove and

substitute a deliberating juror because of an “inability to

continue,” pursuant to Rule 1:8-2(d)(1), is deferential.     We

will not reverse a conviction unless the court has abused its

discretion.   State v. Williams, 171 N.J. 151, 168, 170 (2002);

State v. Valenzuela, 136 N.J. 458, 473 (1994).   An appellate

court’s review of “a trial court’s denial of a mistrial motion”

is also governed by the abuse-of-discretion standard.   State v.

Yough, 208 N.J. 385, 397 (2011) (stating that “grant of a

mistrial is an extraordinary remedy”).

    The deference that must be accorded to trial court fact-

findings in this setting must guide our analysis of whether the

Appellate Division erred in reversing defendant’s conviction.

                                B.

    Rule 1:8-2(d)(1) provides that, after the jury begins its

deliberations, an alternate juror may not be substituted unless

“a juror dies or is discharged by the court because of illness

                                13
or other inability to continue.”1      Rule 1:8-2(d)(1) is intended

to strike a balance between a defendant’s right to a fair trial

decided by an impartial jury and judicial economy.         State v.

Jenkins, 182 N.J. 112, 124 (2004).       “Declaring a mistrial

imposes enormous costs on our judicial system, from the

expenditure of precious resources in a retrial to the continued

disruption in the lives of witnesses and parties seeking

closure.”    Ibid.   Nevertheless, a juror may not be replaced if

to do so would “pose a threat to the integrity or independence

of the deliberative process.”    Ibid.

       Clearly, replacing an ill or deceased juror with an

alternate juror will not pose such a threat.       Ibid.   However,

the removal of a juror because he is disputatious and does not

share the views of other jurors would undermine the very essence



1   Rule 1:8-2(d)(1) provides:

            If the alternate jurors are not discharged and
            if at any time after submission of the case to
            the jury, a juror dies or is discharged by the
            court because of illness or other inability to
            continue, the court may direct the clerk to
            draw the name of an alternate juror to take
            the place of the juror who is deceased or
            discharged.   When such a substitution of an
            alternate juror is made, the court shall
            instruct the jury to recommence deliberations
            and   shall   give   the   jury    such   other
            supplemental    instructions    as    may    be
            appropriate.

            [R. 1:8-2(d)(1) (emphasis added).]

                                  14
of the free and open debate that is expected of jury

deliberations.   Ibid.   Although jurors are urged to attempt to

reach consensus, discord, not just assent, is a natural part of

the deliberative process.   A court may not play any role in

jiggering a jury panel’s composition for the purpose of imposing

conformity.

    Illness and death are neutral categories allowing for the

substitution of an alternate juror.    On the other hand, removal

of a juror for “other inability to continue” is open to varying

interpretations.    For that reason, “[w]e have restrictively

interpreted the phrase ‘inability to continue’ in Rule 1:8-

2(d)(1) to . . . forbid[] juror substitution when a deliberating

juror’s removal is in any way related to the deliberative

process.”   Ibid.   “A deliberating juror may not be discharged

and replaced with an alternate unless the record ‘adequately

establishes that the juror suffers from an inability to function

that is personal and unrelated to the juror’s interaction with

the other jury members.’”   Id. at 124-25 (quoting State v.

Hightower, 146 N.J. 239, 254 (1996)); see also Valenzuela,

supra, 136 N.J. at 468 (“The ‘unable to continue’ language . . .

[applies] to compelling circumstances which are exclusively

personal to the juror in question, and hence which do not and

which by their nature cannot raise the specter of either a jury



                                 15
taint or substantive interference with the ultimate course of

the deliberations.” (internal quotation marks omitted)).

    Our courts have sanctioned the removal of a deliberating

juror for “inability to continue” when the juror has “expressed

refusal to abide by her sworn oath to follow the law,” Jenkins,

supra, 182 N.J. at 130, complained of financial hardship,

Williams, supra, 171 N.J. at 167, stated that his nervous and

emotional condition “affect[ed] his judgment” and ability to

render a fair verdict, State v. Miller, 76 N.J. 392, 401, 406-07

(1978), and “disregarded the court’s unambiguous admonitions”

and had a “conversation with a relative [that] patently

influenced [her],” State v. Holloway, 288 N.J. Super. 390, 404

(App. Div. 1996).    In those examples, the removal is for reasons

personal to the juror and not for reasons relating to the

interchange between jurors or the deliberative process.

    Substituting an alternate juror for a deliberating juror

who fails to report for service is permissible for the same

reason that substitution is allowed under Rule 1:8-2(d)(1) for

illness and death.   In all three scenarios, there is no

potential for the rigging of a jury.   When a deliberating juror

fails to report for service at the courthouse, the juror in

effect has removed herself from the panel.   In that event, the

court’s decision is rather limited, whether to replace the

missing juror with an alternate or declare a mistrial.     Common

                                 16
sense suggests that an absent juror fits into the category of

“inability to continue” because a juror who is not present in

the jury room is unable to participate in any way -- as an

assenter, dissenter, or passive listener -- in the

deliberations.

    A court does not have to indefinitely postpone a trial when

a deliberating juror fails to return to the courthouse to resume

her service.     The court does not have to cede to the absent

juror control over the fate of the trial.     After waiting a

reasonable interval and making inquiries to locate the missing

juror, the court has the discretion to proceed with the trial

and substitute an alternate juror on the panel.     See, e.g.,

State v. Guytan, 968 P.2d 587, 590, 594 (Ariz. Ct. App. 1998)

(concluding that trial court did not err in substituting juror

who failed to appear for second day of deliberations without

engaging in inquiry); Commonwealth v. Robinson, 864 N.E.2d 1186,

1192-93 (Mass. 2007) (stating that “strong likelihood of

unreasonable delay from waiting for” juror who failed to appear

on third day of deliberations because of child-care issues

justified use of alternate juror (internal quotation marks

omitted)); cf. United States v. Peters, 617 F.2d 503, 505 (7th

Cir. 1980) (stating that “it is difficult to imagine a more

complete disqualification than a [juror’s] failure to appear”

during trial).

                                  17
    We must also keep in mind that “there are times when jury

deliberations have proceeded too far to permit replacement of a

deliberating juror with an alternate.”     Jenkins, supra, 182 N.J.

at 131.   That critical threshold is passed when “it is strongly

inferable that the [remaining jurors have] made actual fact-

findings or reached determinations of guilt or innocence [and]

there is a concern that the new juror will not play a meaningful

role in deliberations.”     Id. at 132 (internal quotation marks

omitted).   Thus, a court must assess whether “in light of the

timing of the juror’s dismissal and other relevant

considerations . . . a reconstituted jury will be in a position

to conduct open-minded and fair deliberations.”    State v. Ross,

218 N.J. 130, 147 (2014).

                                  C.

    Any inquiry to determine whether a deliberating juror

should be removed and replaced with an alternate must be

carefully circumscribed to “protect the confidentiality of jury

communications.”   Ibid.    We have stressed that, in questioning a

juror or jurors, a court must diligently avoid “the inadvertent

disclosure of confidential information by a juror.”    Jenkins,

supra, 182 N.J. at 134.    “[M]aintaining the secrecy of jury

deliberations for the purpose of encouraging free and vigorous

discourse in the jury room” is of paramount importance.     Ibid.

We have warned that “[t]he premature revelation of jurors’

                                  18
voting inclinations could damage the deliberative process and

improperly influence the decisions that must be made by both

counsel and the court.”    Ibid.   Accordingly, the court “must

caution a juror at the outset of the colloquy that she must not

reveal the way in which any juror plans to vote, or the vote

tally on a verdict.”    Ibid.; see, e.g., State v. Singleton, 290

N.J. Super. 336, 345 (App. Div. 1996) (observing that court,

during colloquy with juror, stated, “I don’t want you to tell me

what you’re thinking or what the other jurors are thinking”).

    Generally, if a court inquires of a juror on the subject of

“inability to continue,” the questions must be carefully crafted

to elicit answers that only bear on reasons personal to the

juror and that in no way elicit the drift of the deliberations

or voting inclinations of any juror.    For example, in Ross,

supra, when the trial court received a note from the jury that a

juror was “sick” and did not expect to return the next day, the

court questioned the juror about the illness -- not about the

jury’s deliberations.     218 N.J. at 139.   When the juror informed

the court the following day that she was still ill, the court

dismissed the juror.    Ibid.   In Williams, supra, when the court

received a note that one juror could not attend the next day of

deliberations, the questioning of the juror focused on the

specific personal grounds giving rise to the problem -- the



                                   19
financial hardship caused by continued service.     171 N.J. at

159.

       The point is that, in deciding whether those jurors were

able to continue on the jury panel, the questioning was limited

to assessing circumstances personal to the jurors and not

delving into the deliberative process.     We do not suggest that

there is an inflexible rule that applies to the myriad scenarios

that may call for judicial inquiry of a jury, including

scenarios involving the introduction of taint into the jury

room.    Suffice it to say that inquiry into the deliberative

process -- delving into the thoughts and views of jurors -- is

forbidden.

                                 IV.

       The issue before us is whether the trial court abused its

discretion in substituting an alternate juror for Juror Number 2

after she did not report for service on the second day of jury

deliberations.   In addressing that issue, we begin by reviewing

the jury’s note at the end of the first day of deliberations.

       The note informed the court that the jury, which had been

deliberating for several hours, was “undecided” at that point.

The note also contained three questions.    Two of those questions

-- “How much time are we allotted tonight?” and “[C]an we get an

easel with a marker?” -- clearly indicate that the jury was not

deadlocked and was prepared to engage in further deliberations.

                                 20
    The third question asked, “Can a particular juror be

excused from the case?”     The court gave an appropriate response,

stating, “Generally the answer is no.”      The court explained that

“if a juror wishes to be excused, it has to be for a good

reason,” and that a juror cannot be excused for “not getting

along with all the other jurors.”      The court also pointed out

that alternate jurors were available “in case somebody becomes

ill . . . or someone has to leave.”      The court emphasized,

however, that an excusal had to be based on “a very particular

reason, not because you’re not getting along and you don’t want

to be here any more.”     Any juror wishing to be heard was invited

to raise the matter the next morning.

    We do not know whether the question was provoked because of

a juror’s illness, need to attend to a sick relative or child-

care responsibilities, financial hardship due to absence from

work, discord with other jurors, or some other reason.

Defendant’s supposition that the note indicated “something

unusual and troubling [was] going on in the jury room” is

nothing more than speculation.     The court did not turn a blind

eye to the jury question, but was willing to hear from any juror

the following day.   None came forward.

    We do not know whether Juror Number 2, who did not appear

for the second day’s deliberations, was the same juror referred

to in the note.   But even were we to engage in the unwarranted

                                  21
assumption that Juror Number 2 was the subject of the note, she

had no right to purposely absent herself from jury service

without permission of the court -- whatever the reason.       Of

course, we cannot discount the possibility that the juror was

kept from returning for reasons entirely beyond her control,

such as an accident.     No one suggests that an alternate cannot

replace a juror who is involuntarily disabled from returning for

service.

    Even if hypothetically the juror’s unexpressed reason for

not returning were due to a difference of view with other

jurors, that alone would not necessarily precipitate a mistrial.

A single juror cannot nullify jury deliberations -- and the

entire trial process -- by refusing to be physically present in

the jury room.   Although no juror can be compelled to vote

against her wishes in the jury room, presence there is a

precondition for the ability to continue to serve.     This

unlikely scenario should not present a real-life problem because

the court should remain unaware of a deliberating juror’s views

on guilt or innocence.

    The Appellate Division claimed that the court fatally erred

by not questioning “the remaining jurors in an effort to

determine whether there was any connection between the previous

day’s question and Juror 2’s non-appearance.”     However, the

appellate panel did not propose a question that would have

                                  22
yielded relevant information on the issue of whether to proceed

with an alternate juror.     Defendant maintains that the judge

could have asked:    “Without revealing anything about

deliberations, can you tell me why you are inquiring about

excusing a juror?”    But even a “no” answer to that open-ended

question would have intimated a problem related to the

deliberations.

    We do not suggest that, without in any way intruding into

the deliberative process, a narrow line of questions could not

have been posed to the jury to attempt to learn some personal

reason for Juror Number 2’s non-appearance, particularly given

that the trial court was inclined to issue a bench warrant for

her arrest.   For instance, the jurors could have been asked --

after receiving a strict admonition that any answer could not

reveal where any juror stood in the deliberations -- whether

they knew of some specific personal reason that kept Juror

Number 2 from returning for service, such as an illness or the

need to meet a family emergency.       But whatever the answer might

have been, the court likely would not have been restrained from

substituting an alternate.    A court is not required to postpone

a trial for an indefinite period because a deliberating juror

has not returned for service.    See Guytan, supra, 968 P.2d at

590, 594; Robinson, supra, 864 N.E.2d at 1192-93.       The court

made an alternate substitution approximately two hours after

                                  23
Juror Number 2’s failure to appear and after all efforts to

contact her were unsuccessful.    Moreover, the record does not

indicate that Juror Number 2 appeared at any time on the second

day of deliberations.

    In the end, although some limited form of questioning might

have been reasonable, we cannot conclude that the decision not

to pursue an inquiry in this delicate area constituted an abuse

of discretion warranting a mistrial.      Questioning, if not

properly narrowed, had the potential to impermissibly infringe

on the jury’s deliberative process.

    In summary, Juror Number 2’s failure to appear for the

second day of deliberations amounted to an “inability to

continue” under Rule 1:8-2(d)(1).      The deliberations, moreover,

had not proceeded to a point where juror substitution was not

allowed.   Defense counsel conceded this point at oral argument.

The jurors had deliberated for only one afternoon, had not

reached a decision, and requested an easel and marker to assist

in their continued discussions.     Nothing in the record suggests

that jurors had so solidified their views that “a reconstituted

jury” was not capable of conducting “open-minded and fair

deliberations.”   See Ross, supra, 218 N.J. at 147.     Accordingly,

substituting an alternate juror for the missing juror was




                                  24
permissible.2

                                V.

     For the reasons explained, we reverse the judgment of the

Appellate Division and reinstate defendant’s conviction for

second-degree robbery.   We remand to the Appellate Division to

address the issue it did not reach:   whether the trial court’s

failure to give an identification charge denied defendant a fair

trial.   We express no opinion on that subject.


     CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, PATTERSON, and
SOLOMON; and JUDGE CUFF (temporarily assigned) join in JUSTICE
ALBIN’s opinion. JUSTICE FERNANDEZ-VINA did not participate.




2 We make this final observation. Before the court issued a
bench warrant for Juror Number 2’s arrest, the better course
would have been to wait more than two hours to ensure that her
non-appearance was willful and contumacious. Additionally, the
court should not have advised the remaining jurors that a bench
warrant was issued for her arrest. That information was wholly
irrelevant to the task before the jury.
                                25
                  SUPREME COURT OF NEW JERSEY

NO.       A-78                                    SEPTEMBER TERM 2013

ON CERTIFICATION TO             Appellate Division, Superior Court




STATE OF NEW JERSEY,

      Plaintiff-Appellant,

                 v.

HUMFREY A. MUSA,

      Defendant-Respondent.



DECIDED                August 18, 2015
                  Chief Justice Rabner                             PRESIDING
OPINION BY            Justice Albin
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY
                                        REVERSE/
CHECKLIST                              REINSTATE/
                                         REMAND
CHIEF JUSTICE RABNER                           X
JUSTICE LaVECCHIA                              X
JUSTICE ALBIN                                  X
JUSTICE PATTERSON                              X
JUSTICE FERNANDEZ-VINA                --------------------   --------------------
JUSTICE SOLOMON                                X
JUDGE CUFF (t/a)                               X
TOTALS                                         6
