                   NOT FOR PUBLICATION WITHOUT THE
                 APPROVAL OF THE APPELLATE DIVISION

                                     SUPERIOR COURT OF NEW JERSEY
                                     APPELLATE DIVISION
                                     DOCKET NO. A-3458-13T1

STATE OF NEW JERSEY,                     APPROVED FOR PUBLICATION

     Plaintiff-Respondent,                    August 9, 2016

v.                                         APPELLATE DIVISION


JAMES GLEATON, a/k/a WALTER E. GLEATON,
WALTER MASON,

     Defendant-Appellant.
__________________________________________

         Submitted December 2, 2015 – Decided August 9, 2016

         Before Judges Fuentes, Koblitz and Gilson.

         On appeal from Superior Court of New Jersey,
         Law Division, Mercer County, Indictment No.
         10-12-1314.

         Joseph E. Krakora, Public Defender, attorney
         for appellant (Kevin G. Byrnes, Designated
         Counsel, of counsel and on the brief).

         Angelo J. Onofri, Acting Mercer County
         Prosecutor, attorney for respondent (Amanda
         E. Nini, Special Deputy Attorney General/
         Acting Assistant Prosecutor, of counsel and
         on the brief).

         Appellant filed a pro se supplemental brief.

     The opinion of the court was delivered by

FUENTES, P.J.A.D.

     Defendant   James   Gleaton   was   tried   before    a    jury   and

convicted of first degree possession of cocaine with intent to
distribute, N.J.S.A. 2C:35-5a(1); first degree distribution of

cocaine,    N.J.S.A.      2C:35-5a(1);         third       degree    possession      of

cocaine, N.J.S.A. 2C:35-10a(1); and fourth degree maintaining a

narcotics nuisance, N.J.S.A. 24:21-21a(6).                       At sentencing, the

trial   judge    merged   the     first   degree       distribution     of    cocaine

conviction with the convictions for first degree possession of

cocaine with intent to distribute and third degree possession of

cocaine and sentenced defendant to a term of sixteen years with

a mandatory eight-year period of parole ineligibility.                         On the

remaining fourth degree conviction for maintaining a narcotics

nuisance, the judge sentenced defendant to a term of fourteen

months to run concurrent with the sixteen-year term.

    This was the second time defendant stood trial on these

charges.    The first trial held in March 2013 ended in a mistrial

when the jury was unable to reach a unanimous verdict on any of

the charges.      The second trial began on Thursday, October 24,

2013.      The   State    rested    its   case        on   the    afternoon   of    the

following day, Friday, October 25, 2013.                   Defendant was the only

witness called for the defense when the trial resumed on Monday,

October    28,   2013.      The    jury       began    deliberating     on    Tuesday

morning, October 29, 2013.            After three days of deliberations

mired by accusations of incivility against the foreperson by a

group of nine jurors, the trial judge decided to strip juror




                                          2                                   A-3458-13T1
number 1 of her position as foreperson and of the commensurate

responsibilities attendant thereto.                     Soon thereafter the jury

returned    a    verdict      finding       defendant       guilty      on        all    of   the

charges.

      In   this       appeal,     defendant        argues    the     following            events

prejudiced his right to a fair trial and warrants the reversal

of his conviction: (1) the jury's deliberations were tainted by

the disorder caused by a conflict between the foreperson and a

group of nine jurors led by juror number 10; (2) a juror's

personal account of an alleged incident of retaliation by drug

dealers unrelated to this case undermined the jury's ability to

impartially       review      the      evidence     presented      at        trial;       (3)    a

statement made by a law enforcement witness implied defendant

was the head of a narcotics "network"; (4) the trial judge's

evidential       rulings      violated       defendant's      right          to    present       a

complete    defense;       (5)      the    cumulative    effect         of    these       errors

warrant    the    reversal       of    defendant's      conviction;           and       (6)   the

sentence imposed by the court was excessive.

      After      reviewing       the      record   developed       at    trial,          we   are

compelled to vacate the jury's verdict and remand the matter for

a   new    trial.       The      trial      judge's   well-intended               efforts       to

ameliorate      the    acrimonious         environment      created          by    a    conflict

between the foreperson and nine other deliberating jurors unduly




                                              3                                         A-3458-13T1
interfered with the jury's autonomous role as the judges of the

facts.        The   record     shows      the       trial   judge     was    driven     by   an

overriding      concern        for   creating          a    deliberative       environment

capable of allowing the jury to return a unanimous verdict.                                  As

a   consequence,       the     judge      viewed      a     juror's    position       against

further deliberations not as a legitimate stance, but as an

unreasonable        impediment       to    the      goal    of   reaching      a    unanimous

verdict.       Because of "the weighty role that the judge plays in

the dynamics of the courtroom," State v. Figueroa, 190 N.J. 219,

237-38 (2007), a trial judge must guard against showing any bias

against dissent and in favor of unanimity.                             A jury's verdict

cannot be the product of coercion to any degree.                            Ibid.

      Here, the trial judge's response to a note he received from

the foreperson on the second day of deliberations, announcing

the jury had reached "an impasse" based on an eleven to one

split    in     favor     of     continuing           to     deliberate,       constituted

reversible      error   because        it    was      not    carefully       calibrated      to

avoid creating the impression that the court had taken sides in

favor of unanimity and against the one holdout juror.                               The trial

judge compounded this error in the manner he responded to a

group    of     nine    jurors'           complaints        about     the     foreperson's

leadership style.




                                                4                                     A-3458-13T1
       The judge's decision to allow these nine jurors to elect a

"spokesperson" to convey their collective grievances exacerbated

the    factionalism        developing         within       the    jury    and   improperly

elevated the status of the spokesperson within the jury.                                 Even

more    troubling          was    the     judge's          decision       to    allow    the

"spokesperson"        to      discuss    these       matters      with    the   judge    and

counsel privately at sidebar, thereby excluding the eight jurors

he    was   elected      to    represent.           This    approach      was   needlessly

vulnerable     to     the      personal       bias    of    the    "spokesperson"        and

ultimately provided the court with an incomplete and potentially

skewed account of the foreperson's alleged shortcomings.

       More importantly still, the judge accepted the veracity and

accuracy     of   the      spokesperson's           account       to    characterize     the

foreperson as an "obstructionist" and consequently unsuitable to

continue to serve in this capacity.                          As we will explain in

greater detail, the judge's reliance on our decision in State v.

Rodriguez, 254 N.J. Super. 339 (App. Div. 1992), as authority to

support taking the extraordinary step of replacing juror number

1 as foreperson, was misplaced.                     Although we are satisfied the

judge's     decision       was   well-intended,            it    nevertheless      had    the

capacity of being perceived by the foreperson as a retaliatory

act    intended     to      coerce      her    to     change      her     stance   in    the

deliberations to produce a unanimous verdict.                            The judge's bias




                                               5                                   A-3458-13T1
in favor of unanimity was impermissibly coercive.                  Figueroa,

supra, 190 N.J. at 236.

                                      I

    The State's case against defendant was primarily based on

the testimony of two witnesses, Trenton Police Detective Ronald

Pope and defendant's friend, turned confidential informant, N.A.

Pope arranged to make a controlled purchase of cocaine from

defendant.     N.A. agreed to become a confidential informant after

he was arrested by the Trenton Police Vice Enforcement Unit and

charged with unlawful possession of weapons and narcotics.

    Detective Pope was the first witness called by the State.

He began his career as a sheriff's officer in the Mercer County

Sheriff's Office in 1996, before transferring to the Trenton

Police Department two-and-a-half years later.              At the time of

defendant's    arrest   Pope   was   employed   as   a   Detective   by    the

Trenton Police Department, working as a full-time task force

officer with the United States Drug Enforcement Administration

(DEA).   He described to the jury the role N.A. played as a

confidential     informant     in    the   investigation    that     led    to

defendant's arrest.      Pope testified that "no promises" are made

to informants in exchange for their cooperation.            The prosecutor

is the only one who has the authority to enter into an agreement

with an informant related to the charges they are facing and the




                                      6                              A-3458-13T1
terms of any sentence recommendation to the court.                     In this

case, the charges N.A. was facing in State Superior Court were

dismissed and federal narcotics and weapons possession charges

were filed against him in the United States District Court for

New Jersey.

       Pope testified that based on his discussions with N.A., the

DEA Task Force decided to initiate a long term investigation to

focus on not only defendant, "but we also wanted to focus on his

associates as well as his whole network."                  This prompted an

immediate objection from defense counsel.               When the trial judge

asked defense counsel whether he wanted to discuss the matter at

sidebar,     counsel     responded:    "I     don't     think    so,   Judge."

Thereafter     the     trial   judge       sustained    the     objection    and

instructed the jury to disregard this part of Pope's testimony

as "irrelevant."       The judge also struck from the record Pope's

comments concerning defendant's "associates" and "network."

       Based on information provided by N.A., Pope and his fellow

task   force   members    began   their     "long   term   investigation"     of

defendant's     alleged    distribution        of   illicit      narcotics    by

telephoning defendant to arrange a place to meet to discuss the

purchase of a quantity of cocaine.              On September 24, 2009, at

approximately 11:00 a.m., Pope met with N.A. in the parking lot

of Freddie's Tavern in Ewing Township.                 Pope directed N.A. to




                                       7                               A-3458-13T1
call defendant on the phone using a digital recorder to record

the conversation.          The first time N.A. called, defendant did not

answer and the call was redirected to voicemail.

      According to Pope, N.A. told him this was normal behavior

and immediately called defendant a second time.                             That time,

defendant    answered.        Pope   testified       the     conversation         between

N.A. and defendant was recorded.                 The jury was given a copy of

the   transcript      of     the   conversation.            During        this    initial

conversation, N.A. and defendant agreed to meet between 5:00

p.m. and 6:00 p.m. that same day.

      The State's case centered on the "controlled buy" that took

place on September 24, 2009.           As Pope explained, law enforcement

officers    used    $5700     of   government       funds    to     buy    the    illicit

narcotics.     Pope testified that in the course of the recorded

conversation       between    N.A.   and       defendant,     "it    was     determined

through [N.A.] that the going price would be approximately $37

per gram and we wanted to buy 150 grams."                           Law enforcement

agents   monitored      the    exchange        of   the     funds    with        defendant

utilizing a digital audio recorder and an audio transmitter.

They wanted "to establish stationary surveillance on the target

residence" while other officers were in their cars and able to

respond if necessary.




                                           8                                      A-3458-13T1
       Before the jury heard the audio recording, the trial judge

gave   a     cautionary      instruction        concerning      the    quality    of    the

recording, the possible distortions or interference caused by

ambient      noise,    as    well    as   an       individual   person's    manner       of

speaking.       The judge emphasized to the jury that they were to

use    the    transcripts      only       as    a     guide   because    "[t]he     audio

recordings themselves [were] the primary evidence."                         Each juror

should       therefore        resolve          any     discrepancy       between        the

transcription of the conversation and the audio recording in

favor of the actual recording.1

       Pope and DEA Special Agent Eric Brown met with N.A. at

approximately 5:15 p.m. at Freddie's Tavern in Ewing Township.

N.A. placed another call to defendant to solidify their plan.

The two men agreed to meet at defendant's residence.                             Trenton

Police Officer David Ordille established a stationary location

from which to monitor defendant's residence.                          Prior to sending

N.A.   to     meet    with   defendant,         the    officers    searched      N.A.    to

confirm he did not have any money, weapons, or contraband on his

person or motorcycle.               They outfitted N.A. with both an audio

digital recorder and an audio transmitter.                        According to Pope,


1
  The two compact discs that contained the recording of these
interactions were moved into evidence by the State without
objection by defense counsel.




                                               9                                 A-3458-13T1
the audio digital recorder is "very small" and was intended to

be    concealed      on     N.A.'s    person.           Unfortunately,     the    officers

subsequently         discovered       that        the    recorder   "did    not        work."

However,       the     transmitter       was        able    to   transmit        the    live

interactions between N.A. and defendant.                          Pope was unable to

explain why the digital recorder failed to work.

       Officer Ordille was stationed in the woods approximately

100 feet from defendant's residence and twenty feet from the

property line.            The police officers did not lose sight of N.A.

during the time he drove his motorcycle from the place where he

originally met Pope and Brown to when he arrived at defendant's

residence.        Ordille saw defendant walk up to the residence and

sit    on   the      front    porch.         He    also    saw   N.A.   arrive     on     his

motorcycle, park, and get off the bike.                          Although Ordille saw

defendant walk over to N.A. and engage in conversation with him

for a few minutes, he could not hear what was said.                              Following

the conversation, the two men entered the front door of the

residence.           From    his     vantage      point,    Ordille     could     not    see

defendant or N.A. while they were in the residence.

       After      approximately        ten     minutes,      N.A.   came    out    of     the

residence through the front door, got back on his motorcycle,

and drove away.             Ordille notified Pope and Brown that N.A. had

left defendant's residence.              This was intended to signal them to




                                              10                                   A-3458-13T1
continue to surveil N.A. from this point forward.                                  Pope and

Brown      followed     N.A.     back     to     the       prearranged       location          at

Freddie's Tavern, without losing sight of him at any point along

the way.

      Upon arriving at the Tavern, the law enforcement agents

retrieved     the     transmitters       from     N.A.'s      person,       collected        the

cocaine he had purchased from defendant, and searched him and

the   motorcycle       once     again    for     any       additional       contraband         or

money.       The    cocaine     N.A.    purchased          from     defendant     was     in    a

closed,     clear     plastic    bag.       It       was    subsequently         tested      and

identified     as      149.8     grams,     or       5.284        ounces,    of    cocaine.

Defendant     stipulated        the    substance        tested       was    cocaine       in    a

written statement the judge read to the jury.

      On    October     6,     2010,    over     a     year       after    N.A.   made       the

controlled     buy     from    defendant,        the       police    executed      a    search

warrant to search defendant's residence.                            After conducting an

exhaustive     search,         the     officers       were        unable    to    find       any

contraband on the premises.                The police nevertheless arrested

defendant that day based on the evidence recovered from the

controlled buy.         At a pretrial hearing, the trial judge barred

defense counsel from informing the jury of the outcome of the

search of defendant's residence on October 6, 2010.




                                           11                                          A-3458-13T1
    The   State    called   Brown   and    Ordille     to   corroborate   and

expand upon Pope's testimony.            The State called N.A. as its

final   witness.     N.A.   expounded     upon   his    role   in   bringing

defendant to the State's attention in consideration for a more

lenient sentence on his pending charges.         As noted earlier, N.A.

was originally arrested on July 9, 2009, by the Trenton Police

Department.   In an effort to help himself, he agreed to become a

confidential informant and assist state law enforcement officers

in conducting an investigation into defendant's alleged narcotic

activities.

    On October 25, 2013, the day N.A. was scheduled to testify

at trial, the judge placed the following on the record:

           [A]s you know there were two applications
           made to the [c]ourt late yesterday after the
           jury was sent home.        After four p.m.
           yesterday [defense counsel] on behalf of his
           client requested police reports in regard to
           the confidential informant [N.A.], who was
           arrested on July 9, 2009.      We know this
           confidential informant is going to be called
           as [a] witness by the State this morning and
           obviously his credibility is a critical
           issue in this case. . . .

           For the first time defendant made a request
           of this [c]ourt for the police reports
           underlying that arrest on July 9, 2009.    I
           asked that [the prosecutor] provide that
           material to the [c]ourt.    He very promptly
           emailed it to me after 4:30 last night.
           Discovery consists of 65 pages, so I took it
           home last night to review in detail and I've
           made a decision that defendant is entitled




                                    12                              A-3458-13T1
            to this discovery. I believe it will assist
            him in attacking the credibility of [N.A.].

    The court gave defense counsel a complete, un-redacted copy

of the report, after confirming the prosecutor did not have any

objections.         Before   physically          turning       the    report           over   to

defense counsel, the judge noted there were certain allegations

in the police report that "did not result in any charges in

[the]     federal    indictment."               In    response,           the     prosecutor

acknowledged     that    "an       undercover         officer      says         that     [N.A.]

approached his car with a gun . . . directly pointing the gun at

him. . . .          [P]laying devil's advocate saying that [defense

counsel] is allowed to inquire into that, how is that relevant

to anything going on in this trial?"                      The judge responded it was

relevant to show "[N.A.] is testifying out of consideration."

    Defense counsel argued that the facts as described in the

police report showed N.A. could have been charged under New

Jersey law with committing an aggravated assault against the

officer    by   pointing       a    firearm          at    him.       Defense          counsel

maintained the failure of the federal indictment to include this

charge    was   relevant     to     show   it        was    part     of    the     favorable

consideration N.A. received for his cooperation.                           N.A. testified

at the N.J.R.E. 104 hearing that he was aware that the Trenton

Police Department had charged him with "pointing a firearm at an

Officer Flowers."        However, he did not discuss that particular



                                           13                                          A-3458-13T1
charge   with    any    state    or   federal   law    enforcement     agent;   no

promises were ever made regarding that charge; and he did not

know why the charge was not included in the federal indictment.

N.A.   speculated      the     federal   authorities    did   not   include     the

charge   in    the     indictment     because   the    offense   was   committed

against a Trenton Police Officer, not a federal agent.

       Although the trial judge was initially inclined to allow

defense counsel to question N.A. about the failure to prosecute

this charge, he ultimately found N.A.'s speculation persuasive.

The judge gave the following explanation for his ruling:

              [T]he Court has looked at and listened very
              carefully to [determine] whether [N.A.] got
              consideration for the dismissal of that
              aggravated   assault   as   a   result   of
              cooperating.

              He certainly has no knowledge. In fact, he
              knew something that perhaps the Court didn't
              know, is that perhaps the reason it wasn't
              carried over is that had he pulled a gun on
              a federal agent, a federal employee, as he
              noted, perhaps it would have been carried
              over, but it was just a lowly, so to speak,
              Trenton Police Officer, so in that sense the
              Court's going to rule that that cannot be
              gone into on cross examination by the
              defendant.

                     . . . .

              The Court is also mindful of Rule 403, that
              arguably  [defense   counsel]  argues  it's
              relevant evidence, but I think getting into
              that charge can be a little confusing to a
              jury. It's not in the indictment and can be
              a waste of time, and certainly the jury is



                                         14                              A-3458-13T1
            going to hear all the prior criminal charges
            for which this defendant's been indicted,
            the fourth charges I just reiterated on the
            record,    plus    consideration   that   he's
            presumably receiving, to testify in this
            trial   and   with   the   pending  indictment
            hanging over his head.

     The State rested its case in chief at the conclusion of

N.A.'s    testimony.         Defendant    was    the   only   witness     for   the

defense.       He    denied    ever     discussing     the    sale   of   illicit

narcotics with N.A. during the recorded telephone conversations.

He testified that any references to selling or buying referred

to   motorcycles       because    he     and    N.A.   are    both    motorcycle

enthusiasts.        He knew of N.A.'s reputation as a drug dealer and

about N.A.'s home being raided by the police from conversations

he had with his cousin.

                                         A

                           FIRST DAY OF DELIBERATIONS

     The jury reported to the trial court on the morning of

October 29, 2013 to begin deliberations.                 After reviewing the

verdict    sheet     and    selecting    the    alternate,    the    trial   judge

addressed juror number 1 as follows:

            THE COURT:  Juror Number 1, you . . . will
            be the foreperson of the jury because of
            your position in the jury box.      If you
            decide to take on this task, you will
            preside over deliberations and tell us the
            verdict when reached.  Your vote carries no
            greater weight than that of any other
            deliberating juror.     It will be your



                                         15                               A-3458-13T1
           responsibility to lead deliberations. It is
           also your responsibility to tell us what the
           verdict is when the jury has reached it.

           Juror Number 1, are you willing to take on
           those responsibilities?

           JUROR NUMBER 1: Yes, sir.

    The    jury        began   deliberating      at    9:35    a.m.     The    matter

proceeded from this point without incident until the trial judge

informed the attorneys he had received a note from the jury at

11:21   a.m.,     stating:     "Your    Honor,    we   are     unable   to    reach    a

unanimous verdict on Count 1.”                  The note was signed by Juror

Number 1 in her capacity as foreperson.                  The judge reminded the

attorneys the jury had begun deliberating at 9:35 a.m., and had

taken a twenty-minute break when a beverage order was delivered.

Based on this, the judge calculated the jury had only actually

deliberated for approximately one hour and thirty minutes.                            He

thus intended to instruct the jury to continue deliberating by

reading    "the    model       jury    charge    which    is    entitled,      judges

instructions      on    further   jury    deliberations."          Both      attorneys

agreed.

    The judge brought the jury into the courtroom and told them

he estimated they had been deliberating "approximately an hour-

and-a-half."       He also reminded the jury that during the initial

voir dire "you all indicated you were available through this

week.     So I'm going to send you back into the jury room for



                                          16                                  A-3458-13T1
continued deliberations."           The judge then read to the jury the

model charge our Supreme Court approved in State v. Czachor, 82

N.J. 392, 405 n.4 (1980):

            It is your duty as jurors to consult with
            one another and to deliberate with a view to
            reaching an agreement if you can do so
            without violence to individual judgment.
            Each of you must decide the case for
            yourself, but do so only after an impartial
            consideration of the evidence with your
            fellow jurors.

            In the course of your deliberations, do not
            hesitate to reexamine your own views and
            change your opinion if convinced it is
            erroneous. But do not surrender your honest
            conviction as to the weight or effect of
            evidence solely because of the opinion of
            your fellow jurors or for the mere purpose
            of returning a verdict.       You are not
            partisans, you are judges.   Judges of the
            facts.

The judge directed the jury to continue deliberating until 12:30

p.m., when they would recess for lunch.

    The next communication from the jury came sometime after

the lunch recess in the form of two notes.                      As read by the

judge,    the   first   note    stated:        "Your   Honor,   Juror   Number     9

requests to see Your Honor as a question she quote does not want

the rest of the jury to hear.                  It is not regarding the case.

Close    quote.     Signed     by   the    foreperson."         The   second   note

stated:    "'Your   Honor,     the    jury      requests   to    hear   the    full




                                          17                              A-3458-13T1
testimony of W' - - which I take to mean witness - - '[N.A.] or

a transcript of same.'     Again signed by the foreperson."

       With approval of both attorneys, the judge decided to bring

juror number 9 into the courtroom "to find out what's on her

mind and make a decision after I speak to her and hear from

counsel."      Juror number 9 came into the courtroom and sat in

the empty jury box.2    The following colloquy ensued:

            JUROR NUMBER 9: I just wanted to know what
            is the role of a foreman in a jury
            deliberation?"

            THE COURT: Well, I read the instructions as
            part of my charge.   And when I sent in the
            written  charge,   it's  contained  in  the
            charge.

                 . . . .

            THE COURT: And I'll just give you the page
            reference. You know the more I think about
            it, it's not actually part of the charge.
            Obviously, there's the charge I gave.    And
            after I speak with the attorneys, I can
            consider rereading what's referred to as the
            model charge says is the obligations and
            duty of the foreperson.[3]

2
  The record does not reflect that the judge directed the eleven
jurors remaining in the jury room not to discuss the case until
juror number 9 rejoined them. Such a cautionary instruction is
crucial to ensure the verdict reflects the considered judgment
of all twelve jurors.     This stands in sharp contrast to the
detailed instructions the judge gave the jury at the end of each
day to refrain from discussing the case among themselves, even
via any form of social media, and not to discuss the case until
all twelve deliberating jurors were present.
3
    Rule 1:8-8(b)(2) provides:
                                                         (continued)


                                  18                          A-3458-13T1
         JUROR NUMBER 9: And if a juror member or
         members feel that the foreman is doing more
         than their actual role, how would that be
         mentioned. Would that be - - would we bring
         that to your attention or how do you work -
         - or you work it out with the foreman? How
         does that - - how do you handle that?

         THE COURT: Well, I would want to speak to
         the attorneys first. But once again, I will
         read the duties and responsibilities to the
         foreperson as I read before - -

         JUROR NUMBER 9: Okay.

         THE COURT: - - just telling these are your
         responsibilities.   And if there's a concern
         by the jurors, you can send me a note.

         JUROR NUMBER 9: Okay.

         THE COURT:    All right?     Does that answer
         your question?

         JUROR NUMBER 9: Yes, it does.   Thank you.



(continued)

         In criminal cases, the court shall submit
         two or more copies of its final instructions
         to the jury for the jury's use in the jury
         room during deliberations.    The court may,
         however, dispense with the submission of the
         jury instructions in writing if it finds
         that preparation of written instructions
         will cause undue delay in the trial.

         [(Emphasis added).]

It is the trial judge's obligation to ensure the written charges
submitted to the jury during deliberations contain the same
language as the charges read to the jury in the courtroom and
are otherwise complete in every respect.



                                 19                      A-3458-13T1
            THE COURT:         Okay.         Thank    you.   You're
            excused.

            [(Emphasis added).]

       After juror number 9 left the courtroom, the judge asked

both attorneys if it was necessary to reread the description of

the foreperson's duties and responsibilities he had read to the

jury earlier that same day.             Although the prosecutor did not

take a definitive position, he did emphasize that if the court

decided in favor of this course of action, the instructions

should be reread to the entire jury.                 The prosecutor also made

the following prescient observation:

            We're working kind of blind.   Obviously, we
            just know what Juror 9 has told us.        I
            guess, just thinking out loud, my concern if
            the [c]ourt does reiterate that, if there's
            an undercurrent in there, that's going to
            bring it right to the surface. . . . Maybe
            that does need to be read.   As I think out
            loud, I think because the concern has been
            raised by one of the jurors that it does
            need to be addressed.

            [(Emphasis added).]

       Defense counsel opposed rereading the instructions on the

role   of   the   foreperson    to     the    jury.      Echoing   the   concern

initially mentioned by the prosecutor, defense counsel noted:

            I think there are several problems with
            bringing the jury back into remind them of
            the role of the jury foreman.   I mean the
            jury foreman is going to be there and is
            going to hear this again.  And is going to
            be basically reminded of her duty in front



                                        20                               A-3458-13T1
               of 12 other jurors which is sort of almost
               like an admonition that she's not doing her
               job.   If the woman who just came in has
               concerns with how the jury foreman is doing
               her job, they should work it out in the jury
               room.

               [(Emphasis added).]

       The trial judge conceded that based only on juror number

9's account, it was "somewhat speculative as to what's going

on."     To avoid the potential of undermining or embarrassing the

foreperson and to avoid the appearance that the court was taking

sides    in    some     unknown      conflict      among    jurors,       both   attorneys

recommended the judge simply send into the jury room the written

description of the foreperson's role without further comment.

The judge agreed.

       The judge excused the jury for a fifteen-minute afternoon

break.     Thereafter, the jury returned to the courtroom to hear

the    playback        of    N.A.'s      testimony,      which     took    approximately

ninety minutes.              It was 4:10 p.m. at the conclusion of the

playback.       The judge decided to send the jury home for the day

without       giving       them    the   written    charge    on    the     role    of   the

foreperson.       The judge informed the attorneys that after reading

the    comments       to    Rule    1:8-4,   he    had     discovered      this    court's

decision in Barber v. ShopRite of Englewood & Assocs., Inc., 406

N.J. Super. 32, certif. denied, 200 N.J. 210 (2009).                               Although

noting Barber was a civil case, the judge told counsel he wanted



                                             21                                    A-3458-13T1
to read it overnight because he may decide not to send anything

further to the jury.

                                     B

                      SECOND DAY OF DELIBERATIONS

    The jury began its second day of deliberations on October

30, 2013, without any written instructions on the role of the

foreperson.      Approximately thirty minutes after deliberations

had begun, the trial judge advised counsel the jury had sent out

two simultaneous notes.      The first note came from the foreperson

and stated: "Your Honor, Juror Number 1 needs to discuss with

you conduct and discussions occurring by some jurors."                       The

second note was also signed by the foreperson.             However, as the

judge   noted,   it   was   on   behalf   of   a   total   of   nine    jurors

consisting of jurors numbers 10, 7, 8, 11, 3, 14, 9, 4, and 2;

the note stated: "Your Honor, jurors need to speak to Judge re

deliberations."

    The judge decided to bring out the foreperson first alone,

telling counsel that he would remind her that,

           there can be no discussion in court about,
           you know, where they may lie in terms of
           voting for guilt or innocence but hear what
           she has on her mind, and then bring the
           second group, the nine people she identifies
           and, in effect, tell them that I could
           select one of them to be the representative
           or spokesperson or they could indicate to
           the [c]ourt which one of the nine which
           [sic] is to speak.     And obviously then I



                                    22                                 A-3458-13T1
             would give whoever is the representative I
             end up speaking to, I will obviously say to
             the other jurors, is there anything else
             which you think needs to be added.

Neither   the   prosecutor   nor   defense   counsel   objected   to   this

approach.4       The   following    colloquy    reflects    the   judge's

interaction with the foreperson:

             THE COURT:    Good morning.     You may be
             seated.   All right.    Juror Number 1, I
             brought you in because you just sent me two
             notes and I'll read them for the record.[5]
             . . .

             Now, let me advise you, I don't want to hear
             anything from you about where the jury
             stands in voting guilt or innocence. That's
             off limits.   And I know from the note that
             came to me yesterday, I know you've been
             having   a  lively   discussion   and  that's
             typical and that's expected.    But obviously
             I and the attorneys are hopeful that this
             jury can reach a unanimous verdict as to the
             four counts.     That's the hope in every
             criminal case.   But within those parameters
             and knowing what's off limits, you can tell
             me what you think I should need to know to
             try to move this towards a verdict.

             JUROR NUMBER 1:    We have been deliberating
             in earnest but information is being brought
             in   that   should   not   be   brought  in,
             information that was not discussed in this
             courtroom, some suppositions, what ifs,
             different scenarios that I think is totally
             inappropriate      in      discussing     in
             deliberations.   More - - and in addition

4
  Once again, the record does not reflect that the judge directed
the eleven jurors remaining in the jury room not to discuss the
case while the foreperson was absent.
5
  The trial judge read the contents of the notes into the record.



                                    23                            A-3458-13T1
             that's troubling is the conduct of some of
             the jurors in trying to sway the opinion of
             the others to the point of slamming pens
             down on the table, turning away from the
             other juror because you're not allowing them
             to speak.   It's gotten a little nasty, to
             put it lightly.

                    . . . .

             THE COURT:     Okay.    Okay.    Well, every
             foreperson generally has a difficult job to
             do   and   yours  is   especially   difficult
             because, you know, the evidence has led some
             jurors in one direction and other jurors in
             another direction.   And, you know, I know
             you understand your responsibilities.      It
             sounds like you're conducting them to the
             best of your ability and this - - and the
             evidence is such where reasonable minds can
             differ. And I say that because that's true
             of almost any case.

             My thought is you identify nine additional
             jurors. I was going to bring those nine in
             and ask them, you know, if there's one
             person they would like to identify as a
             spokesperson who can, you know, presumably
             say what's on their mind. Any reason why I
             should not to do that?

             JUROR NUMBER 1:       No, Your Honor.

             [(Emphasis added).]

    At this point, the judge asked the foreperson if she had

any suggestions she could give him to assist her "in leading the

deliberations."         In    response,        the   foreperson    directed     the

judge's attention to the written jury charges that had been

given   to    the    jury     to   take    inside     the   jury   room    during

deliberations and focused on the part that reads:                   "It is your



                                          24                              A-3458-13T1
duty, as jurors, to consult with one another and to deliberate

with a view to reaching an agreement if you can do so without

violence to individual judgment."             The judge then confirmed that

the foreperson wanted him to reread this language in the charge

to the jury.      Thereafter, juror number 1 told the judge the

following:

           JUROR NUMBER 1:    And, Your Honor, the last
           comment as an example of pointing to this
           and us not deliberating or attempting to
           intimidate was a question that was just
           asked, are you afraid of retaliation.   And,
           you know, again, that's an example of things
           that aren't appropriate and should not be
           entering into our deliberations.     How you
           can get folks to just stick with the facts,
           I've been trying but now I'm getting some
           strong resistance.

           THE COURT:     Okay.    And I'm asking the
           question just because of what you just said,
           would   you   like   to   continue  as   the
           foreperson?

           JUROR NUMBER 1:        Yes.

      After confirming with the "Senior Sheriff's Officer" that

the remaining eleven jurors were in the jury room, the judge

asked the foreperson to wait in another room while he discussed

the   matter   with   the    attorneys.        Based   on   the   foreperson's

comments about retaliation, the prosecutor was concerned about

matters extraneous to the evidence presented at trial affecting

the deliberations.      After referring to the language in the jury

charges   highlighted       by   the   foreperson,     defense    counsel   was



                                         25                           A-3458-13T1
concerned a group of jurors were conducting themselves in                a

manner to intimidate and coerce other jurors into voting to

convict   defendant.    Defense        counsel   speculated   that    the

foreperson may be one of the jurors who is being targeted for

retaliation by this faction.   The judge expressly stated he was

withholding any conclusion until he heard from the group of nine

jurors.

    The nine jurors identified in the second note were brought

into the courtroom and seated in the jury box.          The foreperson

was in a separate room by herself and two jurors remained in the

jury room.   Thus the jury was now fractured into three separate

and isolated groups.   After the judge read the two notes to the

group of nine, the following colloquy ensued:

          THE COURT: What I'd like to ask is to begin
          by speaking to one of you as, in effect, the
          spokesperson and I can select one of you or
          you can - - you can agree among yourselves
          who would like to speak and it seems like,
          from the show of pointing, that you have a
          spokesperson and I'm going to hear from
          Juror - -

          JUROR NUMBER 10: Ten.

          THE COURT: - - 10 . . . after I have the
          exchange with Juror Number 10, if any of
          you, the remainder of you, feel that you
          have [] new [information] to add that Juror
          Number 10 has not apprised me of, I will
          give you that opportunity.

          So Juror Number 10, tell me what's on your
          mind.



                                  26                            A-3458-13T1
              . . . .

         PROSECUTOR: I'm sorry, Juror Number 10.
         Your Honor, before we begin, could we just
         caution the gentleman?

         THE COURT:    Oh, yes.  I'm sorry.   You're
         right.    Certain things are off limits.
         You're not allowed to tell me, nor any
         juror, where you stand.    I don't want to
         know who's in favor of conviction, who's in
         favor of not guilty, and where you stand in
         terms of numbers. That's off limits.

         JUROR NUMBER 10:   I understand.

              . . . .

         It's the conduct of the foreperson starting
         yesterday morning. She's been disrespectful
         pretty much to everybody who's on the bench
         here.[6]  I was told to shut up when I was
         trying to voice an opinion. I believe then
         there's   been  other  issues   where  she's
         unwilling to deliberate and when we try to
         bring up deliberations, she sat there in a
         corner, not willing to participate, just
         fold her arms, saying I've mentioned - -
         I've discussed things already, I'm not
         willing to go any further. And it just - -
         from yesterday morning, probably around ten-
         thirty, it's just been beating heads against
         the door. She's not willing to listen to a
         discussion.    She’s not willing to speak
         nicely to anybody.    And it was like that
         yesterday and it's got like that again
         today.   She's treating us like we're her
         five year old kids, pretty much how you can
         put it down.




6
  We presume this was a reference to the eight jurors sitting in
the jury box.



                               27                       A-3458-13T1
         And then there was - - there was one other
         thing that I don't know if you want me to do
         it sidebar or if you want me to bring it up
         now that happened last week.

         THE COURT:     That happened last week?

              . . . .

         JUROR NUMBER 10: Yes.          It's something that
         happened and I - -

         THE COURT:     Well, let me ask you this.
         Whatever you want to tell me, is it known,
         as far as you know, to the other jurors?

         JUROR NUMBER 10: Same jurors were in the
         room and the same conversation took place.
         Yes.

         THE COURT: So other jurors - - whatever you
         want to tell me, some other jurors were
         present?

         JUROR NUMBER 10: You know what I'm talking
         about? Everybody know?

         UNKNOWN JUROR:     Yes.

         JUROR NUMBER 10: Who was in the room at the
         time?

         UNKNOWN JUROR: I believe you were.

         JUROR NUMBER 10: [Refers to another juror by
         her first name]?

         THE COURT: So you and two other jurors - -
         I mean, the reason, if you're the only one
         who knows it, I will bring you to sidebar.

         [(Emphasis added).]

    From this point forward, juror number 10 ceased to be the

"representative" or "spokesperson" of the group of nine jurors



                                   28                         A-3458-13T1
because   the   views   he   expressed   to   the   judge   were   based

exclusively on his personal account of what transpired.              The

following colloquy took place entirely at sidebar.

          THE COURT: [Addressing juror number 10] All
          right, sir. Go ahead.

          JUROR NUMBER 10: So last Friday during
          lunchtime, we were sitting in the meeting
          room and we were discussing multiple things,
          just as we do, nothing about the case. Then
          Juror Number 1 mentioned that her - - we
          were talking about mold remediation . . .
          and then she starts talking about how her
          neighbor's house, in 2007, was set on fire.

                . . . .

          . . . [A]nd I'm unclear whether it was a
          police officer or a neighbor said to her,
          well, this could be retaliation for how you
          treat the drug dealers on the street and she
          said . . . this could be based on the fact
          that she sees drug dealers on the street and
          she goes and knocks on their window and
          tells them to move on, move down the street.
          I thought it . . . was something that should
          have been raised straightaway. I let it go
          for a bit but based on comments that are
          coming out during the [deliberations][7] right
          now, it just seems like, based on the facts,
          that that could be an influence in her
          decision.

          That's my opinion.   It's something that has
          been brought up this morning. . . .

          THE COURT: Other than that comment that you
          say Juror Number 1 made last Friday . . .

7
  Juror number 10 actually said "arbitration."  However, it
appears to us the juror simply misspoke and intended to say
"deliberations."



                                  29                           A-3458-13T1
         once   you    started        your   deliberations
         yesterday - -

              . . . .

         has that type of comment by any juror been
         made?

         JUROR NUMBER 10: There was a comment
         probably about half an hour ago that said is
         anybody afraid of retaliation in the case?

         THE COURT: Referring to the jurors?

         JUROR NUMBER 10: To the jurors based on
         whatever decision was made.      Some people
         said yes, some people said no. And when she
         was asked, she didn't respond.      And then
         when she was asked again, she didn't
         respond.   And then somebody said, can you
         please respond, and she said no comment.

              . . . .

         . . . [T]hat's assuming - - that came up
         once.

         PROSECUTOR:   Was that before or after your
         notes got sent out?

         JUROR NUMBER 10: That was . . . we only
         thought there was one note that got sent
         out.   She wouldn't tell us what was in the
         second note.   She sent that without telling
         anybody.

         [(Emphasis added).]

    In response to this allegation, the Judge handed the two

notes to juror number 10.   We note, however, that the judge had

read the contents of both notes to all nine jurors when they

were first seated in the jury box.      After examining both notes,




                                 30                          A-3458-13T1
juror number 10 identified the note that was signed by the group

of nine jurors as the only note he and the other eight jurors

had seen before.    At this point, juror number 10 clarified the

extent of the jury's disunity by noting that two other jurors

had refused to add their names to the note signed by the group

of nine.

           JUROR NUMBER 10: And then, as soon as I said
           I want to speak to the Judge regarding
           misconduct and how you're treating people,
           these people just said I want to sign on, I
           want to sign on, I want to sign on.       It
           pretty much went all around the room. There
           was [sic] others that just said too many are
           going in, we won't go, but everybody feels
           the same way.

               . . . .

           THE COURT: . . . and the other note, C-9,
           indicates Juror Number 1 would like to speak
           to the Court.

               . . . .

           She did not make that aware to you when - -

           JUROR NUMBER 10: We saw her.     We saw her
           write a second note. We said please tell us
           what's on the second note and she licked the
           envelope and sealed it and went to the door
           and knocked.

At this point, the judge permitted the attorneys to question

Juror Number 10.

           DEFENSE COUNSEL: . . . Sir, so there is a
           discussion in the jury room about a fear of
           retaliation?




                                31                        A-3458-13T1
         JUROR NUMBER 10: It was mentioned based on
         the fact of what happened last week and the
         conversation about how someone told her that
         maybe it was retaliation for how she treated
         - - how she went outside and knocked on drug
         dealers' cars that we're assuming that she
         knew where (indiscernible) house and told
         them to move. Then one of the other jurors
         who [was] also part of hearing [sic] the
         conversation brought that up and said, okay,
         is anybody scared of retaliation because
         just based on the way it's been suggested -
         -

         DEFENSE COUNSEL:   Right.

         JUROR NUMBER 10: - - it's been - - you know,
         that's why we came back in yesterday after
         an hour and said we're done, locked.

         DEFENSE COUNSEL: Okay.    So I'm trying to
         understand this correctly. Was the issue of
         retaliation brought up by a juror other than
         Juror Number 1?

         JUROR NUMBER 10: Yes.

              . . . .

         DEFENSE COUNSEL:  Okay.      I appreciate your
         honesty. Thank you.

         [(Emphasis added).]

    Through a series of follow up questions by the prosecutor

juror number 10 later clarified that the conversation concerning

retaliation occurred during the lunch break.   Moreover, "only a

few" jurors were present when it occurred.   After this point was

clarified, defense counsel asked the judge to address an issue




                                 32                       A-3458-13T1
outside the presence of juror number 10.      The judge responded as

follows:

           THE COURT: Okay. Before we do that, I have
           some questions and I do this because, number
           one, we're at sidebar, number two because .
           . . you're the spokesperson.    Do you think
           there's anything I can do to assist the jury
           in ultimately reaching a unanimous verdict
           as to any one of the four counts?

           JUROR NUMBER 10: No.    I believe we have a
           group   of   people  who   are  willing  to
           deliberate except one.

           THE COURT: Okay.    And is that     - - which
           juror?

           JUROR NUMBER 10: Juror Number 1.

           THE COURT: Do you think . . . Juror Number
           1 was made the foreperson because of her
           seat, just by happenstance she was Juror
           Number 1? You know, Juror Number 1, they're
           always   asked do  you   want  to  be   the
           foreperson?

           JUROR NUMBER 10: She gloated.  She gloated
           last week that she would be the foreperson
           of the trial.

           THE COURT: Do you think you can - - you and
           all the other 11 deliberating jurors - - can
           have a discussion based upon the facts in
           the case, based upon the evidence, and
           that's the only thing, you know, you can
           decide this case on, the evidence you heard
           from the witness stand, exhibits marked into
           evidence, can be no speculation - -

               . . . .

           no guessing?   Do you think discussion could
           or could not be more productive if there was
           a different foreperson?



                                33                          A-3458-13T1
JUROR NUMBER 10: Yes. But to be honest with
you, it's - - it would - - regardless of
whether or not it's a different foreperson,
it's whether or not that juror comes back
into that room. . . .

    . . . .

. . . because     it's   -    -   it   won't   go   any
further.

DEFENSE COUNSEL: You mean, as a - - I'm
sorry, Judge.  As a juror, as opposed to a
foreperson?

JUROR NUMBER 10: There's 11 other jurors in
there and right now all 11 of us feel like
we've tried to do - - we've tried to go back
and forth, discuss different points, and
it's only   11 of us going through this so
it's an 11 person jury since yesterday
morning at nine-thirty.

THE COURT:   So the bottom line is you feel
Juror Number 1 does not want to engage in
reasonable discussion?

JUROR NUMBER    10: The first thing she said
this morning   - - somebody asked a question.
One of the     things that she said is, I'm
going to say   this once and then I'm done for
the day.

    . . . .

DEFENSE COUNSEL: Is the jury or any members
of the jury considering facts that have not
been presented as evidence?

JUROR NUMBER 10: I would say there are
scenarios that are coming up that have not
been presented as evidence that Juror Number
1 is bringing up. Yes.




                         34                               A-3458-13T1
DEFENSE COUNSEL:   And only from Juror Number
1?

JUROR NUMBER 10: Yes.

     . . . .

DEFENSE COUNSEL:  Do you feel that you've
sort of given us an understanding that has
been sort of distilled from your fellow
jurors in a box?

JUROR NUMBER 10: If you polled every single
person in that room, you would get the same
comment.    Prior to me coming in, I was
sitting closest to Juror Number 1 when I
heard   the  discussion   that  I   mentioned
previously . . . so I proposed that I would
be the spokesperson for the group based on
that.   And I think it was after I was told
to shut up this morning and then other
people's comments were being brushed off and
it was as though the foreperson was, it's
her way or the highway. But I believe every
single person that you polled, they would
give you the same response that I did.

     . . . .

THE COURT:    Based on your discussions of
deliberations yesterday and today, do you
believe any jurors - - when I say that, all
12 - - do you believe any juror has tried to
intimidate another juror?

JUROR NUMBER 10: No.

     . . . .

THE COURT: And the fact only nine came in,
not 11, do you - - what do you attribute the
fact that two jurors had decided not to come
in, if you know?

JUROR NUMBER 10: I do.




                        35                      A-3458-13T1
            THE COURT: I don't want you speculating.

            JUROR NUMBER 10: One of them was just, okay,
            there's enough of you guys in, I don't need
            to be a part of it, and just put his head in
            his hands and said, let's get this over
            with.   And then another one was - - just
            didn't say anything.   Just - - she saw the
            nine of us going in and that was it.

            [(Emphasis added).]

      The   record     reflects    the    judge   initially      directed       juror

number 10 to rejoin the other eight jurors seated in the jury

box   to    discuss     the    matter     privately     with     the     attorneys.

Thereafter, the judge informed counsel he wanted to make sure

none of the eight jurors who were not privy to the lengthy

sidebar discussion with juror number 10 wanted to speak to him

about any issue concerning deliberations.                  As the judge phrased

it: "I'm going to give them that invitation."                    Both attorneys

approved this approach.

      Defense counsel also wanted to hear from the two other

jurors who decided not to join the group of nine.                      However, the

judge was willing to rely on juror number 10's description of

these two jurors' reaction to the group's initiative to contact

the   court.        Again,    quoting    the   judge:   "Well,      we   heard   the

reasons from . . . juror number 10."                Defense counsel pressed

the   issue    by    noting     that    according     to    juror      number    10's

representations: "But the one juror was silent."                     Although the




                                         36                                A-3458-13T1
judge responded "I agree," he took no action to hear directly

from these two jurors.

       The judge then addressed the nine jurors seated in the jury

box:

           THE   COURT:     All  right.     Ladies  and
           gentlemen, and again I'm addressing the nine
           jurors in the box, I had a discussion with
           the attorneys, extensive discussion with
           Juror Number 10, and you identified him as a
           spokesman, he was very [eloquent].    I just
           don't want to preclude - - [if] anyone feels
           they wish to address me and the two
           attorneys at sidebar, you can. Now, I know
           you didn't hear everything that Juror Number
           10 said at sidebar but does any one of you
           feel strongly you would like to talk to me
           about deliberations? Again, there can be no
           discussion about how anyone is leaning
           towards a - - on a verdict or anything of
           that nature.

           [The record indicates no verbal response.]

           THE COURT:     Okay. Well I don't see any
           hands.   I'm going to ask that the nine of
           you go back into the room.    Your beverage
           has arrived so obviously when the beverage
           arrives,   there's   no  deliberations    and
           obviously, unless you have 12 together,
           there's no deliberations. So let's take . . .
           a 15 minute break. No deliberations.

           [(Emphasis added).]

       After the nine jurors left the courtroom, the prosecutor

addressed the court with his assessment of juror number 10's

account of events.        He proposed the court reinstruct the jury

concerning   its   duty    to   decide   the   case   based   only   on    the




                                    37                               A-3458-13T1
evidence    presented   at    trial,   and        not    on   comments    made   by    a

fellow juror based on his or her particular life experience or

any similar extraneous matter.               The prosecutor also suggested

the judge's instructions should not assess blame or imply that

any   individual     juror    is   responsible          for   the   jury's    alleged

inability to deliberate with civility and respect for opposing

points of view.

             THE PROSECUTOR:   I don't think any fingers
             need   be   pointed   in   that  discussion.
             Everyone should hear it because I doubt
             we're getting the full story from what looks
             to be the two sides in this jury room, but
             . . . they essentially have to act like
             adults.   They have to get past it and they
             have to talk about the case.    And if they
             can't reach a verdict, they can't, but I
             think they need to have the opportunity and
             maybe just a refresher on what their job is
             is going to help them do that.

      The   trial    judge    asked   both    attorneys        whether,      based    on

juror number 10's account of events, they believed "Juror Number

1 should continue as the foreperson."                   Both defense counsel and

the prosecutor expressed skepticism about the court's authority

to remove juror number 1 as the foreperson of the jury.                       Defense

counsel     in   particular   returned       to    the    issue     of   retaliation,

noting "juror number 10 indicated that there was a polling in

the jury room about whether each juror feared retaliation."

      On this basis, defense counsel moved for a mistrial or

alternatively for the trial judge "to read the deliberations



                                       38                                     A-3458-13T1
charge" when the jury returned from the break.      In response to

the judge's request for clarification, both attorneys confirmed

the "retaliation" at issue did not involve "one juror against

another."    The retaliation allegedly discussed among the jurors

concerned "their day to day lives, if in fact they return one

verdict and not another verdict . . . ."       It was the type of

retaliation that occurs "outside the courthouse."

    Once the issue of retaliation was properly framed by the

parties, the trial judge returned to the tension between juror

number 10 and the foreperson.     After restating the conflicting

accounts given by jurors 1 and 10 as to who was responsible for

the state of incivility in the deliberative process, the trial

judge decided to bring the twelve deliberating jurors and the

alternate into the courtroom, and reread to them the part of the

charge that describes their duty as jurors

            to   weigh   the  evidence   calmly,  without
            passion,   prejudice,  or   sympathy.     Any
            influence caused by these emotions has the
            potential to deprive both the State and the
            defendant of what you promised them, a fair
            and impartial trial by fair and impartial
            jurors.    Also speculation, conjecture, and
            other forms of guessing play no role in the
            performance of your duty.

    The judge also intended to recharge the jury on the role of

the foreperson.     He planned to reiterate and emphasize that

juror number 1 was designated foreperson by virtue of occupying




                                 39                         A-3458-13T1
a seat number in the jury box.              He also planned to supplement

the model charge with the following language taken directly from

our decision in Barbe, supra:

             [The] foreperson['s] . . . role [is] to
             maintain order in the deliberations, marshal
             the jurors' votes on the issues presented on
             the verdict sheet and to render the verdict
             on behalf of the jurors.      Otherwise, the
             jury foreperson is only one vote of six and
             his opinions have no greater weight than
             those of the other jurors. It is not the
             role of the foreperson to explain legal
             concepts to the other jurors.

             [406 N.J. Super. at 56 (citations omitted).]

Finally, the "last thing" he intended to read to the jury was a

modified     version   of   the    standard      charge   on    the   role    of   the

foreperson, deleting the language that informs the foreperson:

"it is your responsibility to lead deliberations.                      It is also

your responsibility to tell us what the verdict is when the jury

has reached it."

       After informing counsel of this decision, the judge denied

defendant's motion for mistrial "without prejudice."                    Noting for

the record that the previous day the jury had sent out a note

indicating their deliberations had reached an impasse, the judge

told   the    attorneys     he    planned   to    read    the    charge      entitled

"Judge's Inquiry When Jury Reports Inability to Reach Verdict"

approved by the Supreme Court on June 30, 2013, three months

before the start of the trial.



                                       40                                    A-3458-13T1
      At the end of this lengthy interlude in deliberations, made

even longer by the discussion that followed juror number 10's

sidebar revelations concerning retaliation, a Sheriff's Officer

reminded the judge that Juror Number 1 had been kept alone in a

room, separated from the rest of the jury during the entire

time.   The judge decided to reconvene the jury after a fifteen-

minute recess and instructed the Sheriff's Officer accordingly.

At the end of the recess, the judge brought the foreperson into

the   courtroom   by   herself   and    again    described      to   her   "the

responsibilities of the foreperson."            The judge then addressed

juror number 1 directly as follows:

           THE COURT: Based on everything you know, do
           you   think    you    can    carry   out  that
           responsibility?       In   other   words, lead
           deliberations, give everyone a chance to
           speak . . . and see if you can develop a
           consensus. Obviously, I know when I had you
           here a little while ago, you told me your
           concerns   and    I’m    concerned    for your
           concerns. Let me ask you once again, do you
           think you would like to continue this
           responsibility of leading deliberations and
           give everyone a chance to speak up and
           discuss it in a meaningful manner?

           JUROR NUMBER     1:   Yes,    but    may   I   ask    a
           question?

           THE COURT: Absolutely.

           JUROR NUMBER 1:   When - - but when it gets
           beyond the scope of what we were to do, how
           would you -




                                   41                                 A-3458-13T1
    In response, the judge informed the foreperson he planned

to recharge the jury regarding their duty not to "speculate,

conjecture,   [or   engage   in]   other   forms   of   guessing"   about

matters outside the evidence presented at trial.          He emphasized

that the verdict must be based on the evidence and must be

unanimous.    The judge then again asked juror number 1: "[D]o you

feel . . . you can lead deliberations in a meaningful manner?"

She responded: "Yes."

    After the twelve deliberating jurors were seated in the

jury box, the judge again instructed them at length about the

manner the foreperson is selected as described in Rule 1:8-4 and

her role and responsibilities in this capacity.         With respect to

the verdict sheet, the judge informed the jurors that "until you

can come to a unanimous verdict on Count 1, there's no reason to

go to Count 2, 3, and 4, and I know you figured that out."

(Emphasis added).     The judge also noted his concern regarding

the note the jury had sent out the previous day, reporting they

were unable to reach a unanimous verdict on Count 1.                After

noting the jury had not sent out a similar note that day, the

judge asked the jury the following question:

         But ladies and gentlemen, do you feel that
         further deliberations will be beneficial or
         do you feel you've reached a point at which
         further deliberations will be futile?   I'm
         going to ask you to return to the jury room
         and confer and advise me in a decision in



                                   42                           A-3458-13T1
         another note as to whether you wish to
         continue deliberating or whether you feel
         that would be completely nonproductive.[8]
         And I ask the foreperson, whenever you send
         a note to me, always read it to your fellow
         jurors so everyone can know exactly what's
         being sent to me, if there's any - -
         because, obviously, I want the note to
         represent the thoughts of all 12.       All
         right.

    After the passage of an unknown period of time, the judge

received two more notes from the jury.    Although both notes were

written and signed by the foreperson, one note conveyed the

following message from juror number 7: "Your Honor, Juror Number

7 would like to talk to you re instructions on deliberations."

The second note read: "Your Honor, we have reached an impasse.

Eleven jurors want to continue deliberation.   One juror does not

want to continue deliberations."    After conferring with counsel,

the judge decided to address first the concerns expressed by

juror number 7.

    It is important to emphasize that juror number 7 was one of

the nine jurors who sought to speak to the court earlier in the

day "re deliberations."   However, by selecting a "spokesperson"

to speak for the group instead of speaking directly with each




8
  The judge's instructions here were a verbatim recitation of the
language in the model jury criminal charge entitled: "Judge's
Inquiry When Jury Reports Inability to Reach Verdict," approved
by the Supreme Court on June 30, 2013.



                               43                         A-3458-13T1
individual juror, the court never heard her actual views on the

subject.

           THE COURT:    Tell us what's on your mind?

           JUROR NUMBER 7: Your Honor, you just read to
           us a whole bunch of - -

           THE COURT:    Instructions.

               . . . .

           JUROR NUMBER 7:   And one of it was that we
           had to keep an open mind and I thought that
           was very important for us once we're going
           back into that room and I just didn't know
           how to approach that because there are some
           people in the room who will not - - who do
           not want to keep an open mind and who have
           emphatically said that they will not keep an
           open mind and that just upsets me because we
           are very insistent to do justice and I think
           if it's your instructions for that, . . . I
           just felt I had to bring it to your
           attention.

           THE COURT:     Is there anything you can
           suggest to the [c]ourt, other than what I've
           already   done,   and    we've   read   some
           instructions giving you additional . . .
           instructions, anything else that comes to
           mind?

           JUROR NUMBER 7: I cannot and that's why I'm
           coming to you.

               . . . .

           And that's how a majority of us do feel,
           that we are willing to keep an open mind.
           We are willing to talk and it's so hard that
           when someone just comes back to you and
           says, no I'm not.




                                  44                      A-3458-13T1
           THE COURT:   Let me ask you this.    I heard
           from Juror Number 10 before, as well as
           Juror Number 1, separately. The [c]ourt has
           some   limited   discretion  in   terms   of
           appointing a different foreperson.    Do you
           think discussions would be more productive
           leading to a possible verdict if there was a
           different foreperson?

           JUROR NUMBER 7: Well, yes and no.        Yes,
           because I think we might be able to . . .
           try and discuss and have it in a non-
           confrontational way; no because I think the
           juror who has emphatically said no, they
           don't want to do it is not going to change
           their mind . . . .     I personally posed the
           question that why can we not talk about
           this, even if it means that we have to talk
           for 150 times, because maybe the 151st time,
           some - - a phrase that you may say might
           open the lightbulb, whatever, and the juror
           came back and said no.

           [(Emphasis added).]

    After excusing juror number 7, the judge discussed with the

attorneys the note indicating the jury had reached an impasse.

After   acknowledging    the     eleven-to-one    status      of   the    jury's

deliberations,    the    prosecutor    declined    to    characterize          the

situation as "futile."         The prosecutor argued the "11 people in

there   willing   to    try"    deserved   "a   chance   to    talk      to    the

individual . . . who has indicated that they don't want to

review the facts of the case . . . ."             Citing our decision in

State v. Rodriguez, supra, the prosecutor suggested the court

consider removing juror number 1 as the foreperson of the jury




                                      45                                 A-3458-13T1
and   appoint    or   have   the    jury      elect      a   different     juror      as

foreperson.

      The    prosecutor      conceded        that     "Rule        1:8-4   does      not

contemplate     the   replacement       of   a   [jury's]       foreperson."          He

nevertheless argued it was "within the ambit of the judge's

discretion,      particularly      in    light      of       [Rule]    1:1-2      which

authorizes relaxation of the rules to appoint a new foreperson

where there were obvious difficulties with a member of the jury

originally      designated."        According         to     the    prosecutor,       an

individual juror who refuses to continue deliberating after the

second day of deliberations "is prejudicial to both the defense

and the State, and if that can be overcome, then we should be

able to get a verdict."

      Defense counsel urged the trial judge to declare a mistrial

because the jury had announced it was "deadlocked."                            Defense

counsel argued:

            Eleven people are willing to continue and
            one is not.   So that is an impasse and the
            instruction that the [c]ourt read to them
            before they went out was to go back, try to
            confer, and then advise of your decision in
            another note.   Another note came out, we're
            at an impasse, and I think the appropriate
            thing to do now is to declare a mistrial.

      The trial judge denied defense counsel's application for a

mistrial and decided to replace juror number 1 as foreperson.

Acknowledging Rule 1:8-4 is "silent on the issue of replacing



                                        46                                     A-3458-13T1
the foreperson," the judge nevertheless found support for this

decision in Rodriguez.       The judge specifically cited Rodriguez's

reliance    on   Rule    1:1-2   as   justification   for   relaxing   the

mechanism for the designation of a foreperson under Rule 1:8-4

"where there were obvious difficulties with the member of the

jury originally designated."          Rodriguez, supra, 254 N.J. Super.

at 350.

    Focusing on the "obvious difficulties" required to remove

juror number 1 as foreperson, the trial judge made the following

findings:

            In terms of difficulties, when I heard Juror
            Number 10 at sidebar, he indicated the
            foreperson was somewhat of an obstructionist
            in permitting deliberations go forward. She
            was not leading deliberations as I charged
            her to do.   So for that reason, I am going
            to appoint someone else . . . .

    Defense counsel objected to the replacement and argued for

a mistrial, especially in light of juror number 7's allegations

that there "were some people among or in the jury who will not

keep an open mind."        Both attorneys suggested if the court was

inclined to replace the foreperson, it should be left to the

jurors to elect.        When the jury returned to the courtroom, the

judge acknowledged receipt of the note from juror number 7 and

the other note indicating the jury was at an "impasse," with




                                      47                         A-3458-13T1
eleven jurors wishing to continue deliberating, and one juror

not willing to go any further.

    The judge also mentioned the time consumed to respond to

the various notes sent by both the jury and individual jurors,

meant the jury had not had a long time to actually deliberate.

He had thus decided to give the eleven of twelve jurors the

opportunity to continue deliberating after lunch.       The judge

then made the following statement:

         Also, I'm making a decision to have a
         different foreperson and I say that, Juror,
         not in criticism of you.        I just say
         sometimes it's good to hear from another
         voice so I don't want you to take it as
         criticism.    Whatever your convictions are
         are your convictions, whatever 12 of you,
         your convictions are.   I've, you know, read
         the instructions over this morning as to how
         you're to conduct your deliberations and you
         have a copy of the charge with you . . . .
         Look at that to assist you.

         As you know, any verdict can be based solely
         on the evidence you've heard from the
         witness stand, the exhibits marked into
         evidence.   Anything else is not material,
         not relevant, to your deliberations and
         ultimately hopefully a unanimous verdict.
         But in general I'm following a general rule
         and, for whatever reason - - let's say Juror
         Number 1 had been selected as an alternate.
         You go right down the row.      So following
         that, Juror Number 2, I'm going to ask you
         if you would be willing to take on the
         responsibilities of a foreperson and, again,
         I can review with you responsibilities.
         Would you be willing to take on those
         responsibilities?




                                 48                       A-3458-13T1
            JUROR NUMBER 2: Yes.

    Deliberations resumed after the lunch recess.9           The jury

sent out a note at 2:39 p.m., requesting a playback of parts of

N.A.'s testimony.    The judge advised the attorneys he planned to

send the jury home "at four o'clock, right on the dot."        As the

judge was about to reconvene the jury to announce the recess for

the day, the jury sent out another note requesting "to hear the

testimony of Officer Pope and DEA [Agent] Brown."           The judge

informed the jury they would hear the playback the following day

and recessed for the day.      We pause to note that the courtroom

where this case was tried was equipped with video recording

equipment.    Thus, the playback enabled the jury to see and hear

the witnesses.

                                   C

                     THIRD DAY OF DELIBERATIONS

    The final day of the trial began with an hour delay in

arranging    the   playback   of   Pope's   and   Brown's   testimony.

Although the note from the jury simply requested to replay "the

testimony" of these two witnesses, the judge did not make any


9
  In the interest of completeness, the record shows the alternate
was returning to the jury room and joining the deliberating
jurors during the various recess periods. The judge questioned
the alternate when defense counsel brought this irregularity to
his attention. The alternate told the judge he had not discussed
any aspect of the case with the deliberating jurors.



                                   49                         A-3458-13T1
attempt to narrow the scope of the request.                       Once the twelve

jurors were seated in the jury box at 10:10 a.m., the judge told

the jury the court clerk estimated the playback of Pope's entire

testimony      "could     be    as   long    as   two-and-a-half      hours."       The

playback of Brown's entire testimony would take approximately

forty-five minutes.             The judge told the jury he foresaw "going

for about two hours, because I think that's your limit . . . ."

A one-hour lunch recess was scheduled to start at twelve noon

and the jury would then reconvene to hear the remaining part of

the playback.

       After   the    playback       was    complete,    the   jury   would     resume

deliberations.            However,    the     judge    informed    the    jury    that

"because of a commitment I have unless I get word from you

otherwise . . . I'm going to be sending you home a little before

3:30 [p.m.] today."              The judge also suggested the jury could

resume deliberations after Pope's playback was completed; they

could then break again to view Brown's playback, and resume

deliberations after Brown's playback was completed.

       The playback did not proceed as the judge expected.                       After

an unexpected bathroom break, the judge decided to send the jury

back   at   the   end      of   Pope's      playback    around    12:05   p.m.,     "to

deliberate      for   a    short     while    before    you    have   [your]     lunch

break."     Acknowledging the jury had requested a playback of both




                                            50                                A-3458-13T1
Pope's and Brown's testimonies, the judge nevertheless decided

to

            give you a short time, if you decide you
            want to deliberate over what you heard so
            far, or you could send me a note, no, we
            want to come right back into court, as you
            indicated late yesterday, before we had a
            late start today of Mr. Eric Brown.

            Either way, you're going to be either be
            deliberating in the jury room or in the
            court   listening  to   additional   playback
            you've requested until about 12:30 [p.m.]

     When    the    jury    left    the    courtroom,     the   judge   told    the

attorneys he decided to take this measure because he believed

the jury was tired after viewing and listening to two hours of

video playback testimony.            The jury reconvened after lunch and

requested to view the playback of Agent Brown's testimony.                      The

playback    ended   at     2:25    p.m.,   at   which    time   the   court   again

recessed to allow the jury a beverage break.

     After the passage of an undisclosed amount of time, the

jury sent out a note reporting they had reached a unanimous

verdict.

                                           II

     Against    this     record,     defendant     now    appeals     raising   the

following arguments:

            POINT I

            THE    DEFENDANT'S   FEDERAL   AND   STATE
            CONSTITUTIONAL RIGHT TO DUE PROCESS OF LAW



                                           51                             A-3458-13T1
AND TO A    FAIR   AND    IMPARTIAL   JURY   WAS
VIOLATED.

    A.    THE JURY DELIBERATIONS WERE
    IRREMEDIABLY TAINTED BY A JUROR'S
    PERSONAL ACCOUNT OF A BURNING
    HOUSE RESULTING FROM DRUG DEALER
    RETALIATION,     FOLLOWED    BY    A
    DISCUSSION   AMONG    JURORS   ABOUT
    THEIR   PERSONAL   FEARS   OF   DRUG
    DEALER RETALIATION.

    B. THE TRIAL COURT FAILED TO VOIR
    DIRE A JUROR WHO REPORTED THAT HE
    JUST WANTED TO "GET IT OVER WITH"
    AND FAILED TO VOIR DIRE OTHER
    JURORS WHO REPORTED THEY FEARED
    DRUG DEALER RETALIATION.

    C.   THE TRIAL COURT'S INSTRUCTION
    TO THE JURORS ADVISING THEM TO
    CONTINUE THEIR DELIBERATIONS WAS
    ERRONEOUS AND PREJUDICIAL.   (Not
    Raised Below)

    D.   A TRIAL PROCEDURE IN WHICH
    JURORS   IGNORE   INSTRUCTIONS   AND
    INJECT EXTRANEOUS MATTERS INTO THE
    DELIBERATION    PROCESS   UNDERMINES
    PUBLIC     CONFIDENCE     IN     THE
    ADMINISTRATION       OF     JUSTICE.
    (Partially Raised Below)

POINT II

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW
AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO
THE UNITED STATES CONSTITUION AND ART. I,
PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS
VIOLATED BY THE PROFFER OF EXTRAORDINARILY
PREJUDICIAL TESTIMONY PERTAINING TO THE
DEFENDANT'S   ALLEGED  DRUG   "NETWORK"  AND
"ASSOCIATES."




                     52                            A-3458-13T1
POINT III

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW
AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO
THE UNITED STATES CONSTITUTION AND ART. I,
PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS
VIOLATED BY THE TRIAL COURT'S RULING BARRING
THE DEFENDANT FROM PRESENTING A COMPLETE
DEFENSE.

    A.   THE FACT THAT THE POLICE
    FOUND NO EVIDENCE OF DRUGS OR
    DEALING WHEN THEY SEARCHED THE
    DEFENDANT'S ALLEGED DRUG NUISANCE
    HOUSE WAS RELEVANT AND PROBATIVE
    OR   WHETHER  THE   DEFENDANT   HAD
    MAINTAINED    A    DRUG    NUISANCE
    PROPERTY AT THAT LOCATION.

    B.   THE   FACT   THAT   THE  LONE
    WITNESS   TO   THE   ALLEGED  DRUG
    TRANSACTION WAS NOT PROSECUTED FOR
    POINTING A GUN AT A POLICE OFFICER
    WAS RELEVANT EVIDENCE OF BIAS AND
    SHOULD HAVE BEEN ADMITTED.

POINT IV

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW
AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO
THE UNITED STATES CONSTITUTION AND ART. I,
PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS
VIOLATED  BY   THE  ACCUMULATION   OF  TRIAL
ERRORS. (Partially Raised Below)

POINT V

THE SENTENCE IS EXCESSIVE.

    A.   THE TRIAL COURT IMPROPERLY
    BALANCED   THE    AGGRAVATING AND
    MITIGATING CIRCUMSTANCES.

    B.   THE TRIAL COURT MADE FINDINGS
    OF FACT TO ENHANCE THE SENTENCE.




                     53                        A-3458-13T1
    In   his   pro   se   supplemental       brief,     defendant    raises   the

following additional arguments:

          POINT I

          A DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS
          GUARANTEED BY THE FOURTEENTH AMENDMENT TO
          THE UNITED STATES CONSTITUTION AND ART. I,
          PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS
          VIOLATED BY THE TRIAL COURT'S RULING BARRING
          A DEFENDANT FROM PRESENTING A COMPLETE
          DEFENSE

                      A.     THE FACT THAT THE POLICE
                 VIOLATED    THE FOURTH AMENDMENT TO
                 SEARCH A    DEFENDANT'S ALLEGED DRUG
                 NUISANCE   HOUSE WAS RELEVANT

                      B.   THE FACT THAT THE BODY
                 WIRE RECORDING COOPERATED WITH THE
                 DEFENDANT'S TESTIMONY WAS RELEVANT

    We   agree    with    defendant        that   the      jury's   deliberative

process was irreparably tainted by the strife that developed

between the foreperson and a group of nine jurors.                  This discord

overwhelmed the deliberative process with extraneous matters and

irreparably    undermined   the   reliability         of   the   verdict.     The

steps the trial judge took to address this situation, while

well-intended, impermissibly intruded into the jury's autonomous

role as judges of the facts.           Our analysis is guided by the

following principles:

               [A defendant's] right to a jury trial
          is one of the founding principles of our
          Republic and is guaranteed by both the Sixth
          Amendment of the Constitution of the United
          States, United States v. Gagnon, 470 U.S.



                                      54                                A-3458-13T1
522, 526, 105 S. Ct. 1482, 1484, 84 L. Ed.
2d 486, 490 (1985), and Article I, Paragraph
10 of the New Jersey Constitution, State v.
A.R., 213 N.J. 542, 557 (2013).      As the
guardian of that guarantee, the trial judge
is entrusted with the responsibility of
controlling courtroom proceedings and is
bounded by the law and the rules of the
court. State v. Tedesco, 214 N.J. 177, 188-
89 (2013).

     A jury verdict must be guided by
correct legal instructions from the trial
judge and unaffected by matters extraneous
to the evidence presented at trial.    Thus,
"[e]rroneous    instructions     on  matters
material to the juror's deliberations are
presumed to be reversible error."   State v.
Allen, 308 N.J. Super. 421, 431 (App. Div.
1998) (quoting State v. Grunow, 102 N.J.
133, 148 (1986)).       Although granting a
mistrial   in   a  criminal    case "is   an
extraordinary remedy[,]" the trial judge is
bound to grant this relief when it is
necessary "'to prevent an obvious failure of
justice.'" State v. Yough, 208 N.J. 385, 397
(2011) (quoting State v. Harvey, 151 N.J.
117, 205 (1997)).

     The role of the jury as the judges of
facts is predicated on the integrity of the
deliberative process. State v. Corsaro, 107
N.J. 339, 346 (1987). In those cases where
the jury announces an inability to reach a
unanimous verdict, the decision whether to
grant a mistrial turns on whether the
duration   of   the    deliberations  balanced
against the length of the trial and the
complexity of the proofs shows the jury has
made   a  good-faith     effort  to  reach   a
sustainable verdict.     See State v. Ramseur,
106 N.J. 123, 300-05 (1987), cert. denied,
508 U.S. 947, 113 S. Ct. 2433, 124 L. Ed. 2d
653 (1993).       Beyond this, any further
direction   from    the   judge   to  continue
deliberations, especially in the absence of



                     55                          A-3458-13T1
           a reminder of the right to return a non-
           unanimous  verdict,   could  be  viewed  as
           coercive.    Figueroa, supra, 190 N.J. at
           (citing State v. Hunt, 115 N.J. 330, 382-85
           (1989)).

                In determining the propriety of a trial
           court's response to a jury's inability to
           reach a unanimous verdict, our Supreme Court
           has identified two principal concerns: (1)
           whether the supplemental instruction has the
           capacity   to   improperly   influence   the
           dissenting jurors to change their votes; and
           (2) whether "the weighty role that the judge
           plays in the dynamics of the courtroom"
           improperly coerced the jury into returning a
           verdict. Id. at 237-38.

           [State v. Dorsainvil, 435 N.J. Super. 449,
           480-81 (App. Div. 2014).]

    Depending on the circumstances, "even a general inquiry by

the judge about deliberations may present the possibility of

coercion."   Figueroa, supra, 190 N.J. at 238.        Adhering to these

principles, we have also condemned any measures taken by a trial

judge to "'undo a jury deadlock' by 'focus[ing] upon possibly

the weakest links in the chain locking the jury in disagreement,

namely, the minority holdouts on the jury.'"           State v. Nelson,

304 N.J. Super. 561, 565-66 (App. Div. 1997) (quoting Czachor,

supra, 82 N.J. at 398).         "Thus, when instructing a jury that

reports   being   deadlocked,   a   trial   judge   must   be   especially

vigilant to avoid communicating a results-oriented message that

could be perceived as intolerant of dissent and antagonistic to

the free expression of strongly held beliefs that may not be



                                    56                            A-3458-13T1
shared by a majority of the deliberating jurors."                    Dorsainvil,

supra, 435 N.J. Super. at 481.

      Here,    the   record    is   replete   with   instances       showing   the

trial judge repeatedly communicated to the jury a clear message

favoring those jurors who were willing to continue deliberating

and   characterizing     the    one   juror   who    expressed   a    dissenting

point of view as an "obstructionist."                This judicial bias in

favor of unanimity ultimately manifested itself in the judge's

taking the extraordinary action of stripping juror number 1 of

her role as foreperson under Rule 1:8-4, and bestowing that

title   and    commensurate     responsibilities       to    juror    number    2.

Although the judge acted to facilitate the jury's deliberations,

his decision was legally flawed in a number of ways.

      The judge's first legally misguided step was in the manner

he selected to respond to the note sent by the group of nine

jurors on the second day of deliberations.              Rule 1:8-4 does not

define the duties of a jury's foreperson.                   However, the Model

Charge for Appointing the Foreperson approved by the Supreme

Court on January 14, 2013, provides the definition the trial

judge correctly gave here at the time he selected juror number 1

as the foreperson in accordance with Rule 1:8-4:

                   Juror # _____ you are the foreperson of
              the jury because of your position in the
              jury box.      You will preside over the
              deliberations and tell us the verdict when



                                       57                                A-3458-13T1
            reached.    Your vote carries no greater
            weight than that of any other deliberating
            juror.

                 It is your responsibility to lead
            deliberations.     It    is    also     your
            responsibility to tell us what the verdict
            is when the jury has reached it.    When you
            come out with your verdict, please resume
            the seats you now have.       We will make
            certain everyone is here. We will then ask
            the foreperson to stand to confirm that you
            have arrived at a verdict.

                 We will read each charge and will ask
            the foreperson what the verdict is as to
            each.   The foreperson will answer with the
            verdict on each charge.   We then poll each
            of the deliberating jurors to confirm his or
            her agreement with the verdict announced by
            the foreperson.

            [Model Jury Charge (Criminal), "Judge's
            Instructions for Selecting and Charging
            Alternates   and Appointing  Foreperson"
            (2013).]

    This charge gives the foreperson and his or her fellow

deliberating jurors a clear definition of the function of the

foreperson and the scope of the administrative functions the

court    expects   this    person   to    perform.       The   first   thing   the

charge    mentions    is    why     the        court   chose   this    particular

individual to serve in this capacity: (1) you are the foreperson

of the jury because of your position in the jury box: (2) the

charge then makes clear that the foreperson's vote carries no

greater weight than that of any other deliberating juror: (3)

finally, the charge clearly states the foreperson has just two



                                          58                             A-3458-13T1
basic responsibilities or duties (a) to lead deliberations; and

(b) to tell the trial court what the verdict is when the jury

has reached it.

      The   problem     here   concerned       the        meaning    of    "to     lead

deliberations."       The trial judge properly sought guidance from

Barber v. ShopRite of Englewood & Assocs., Inc., supra, the only

reported    decision    from   this    court       that    addressed      this   issue

directly.     The underlying facts in Barber concerned a civil

action filed by the plaintiff to recover compensatory damages

for   injuries   she    sustained      from    a    fall    on    the     defendant's

premises.    Barber, supra, 406 N.J. Super. at 38-39.                       The case

was tried before a civil jury that found the defendant negligent

and awarded the plaintiff $876,000 in compensatory damages.                         Id.

at 37.

      The   defendant   Shoprite       appealed.          While     the   appeal    was

pending, we granted Shoprite's motion to supplement the trial

record to include an article that appeared in the New Jersey Law

Journal eight months after the jury had returned its verdict in

favor of the plaintiff.           Ibid.        The article was written by

"Robert Martin, who served as juror number one and foreperson

during the trial.        During voir dire, Martin disclosed that he

was a New Jersey State Senator, a full-time professor of law and

a practicing lawyer."          Ibid.     We "remanded the matter to the




                                        59                                   A-3458-13T1
trial court to conduct a hearing and take testimony from Martin

and the other jurors with respect to Martin's article."                     Ibid.

    In this article, Martin described his impressions of the

jury selection process, he bemoaned the inherent inconveniences

imposed on those who are compelled to serve; and chastised the

insensitivity and incompetence of those entrusted to care for

the jurors.      Id. at 46.           With respect to the deliberations,

Martin   wrote   that       despite    his     best   efforts       to   conceal    or

underplay his status as a member of the State Legislature, legal

professor, and practicing lawyer, the other jurors looked to him

for legal guidance.

            Over the course of our deliberation I became
            increasingly aware that other jurors were
            relying on me for assistance, especially in
            dealing with abstract legal concepts and
            procedural issues. For example, I was asked
            to   clarify   what  the   judge  meant   by
            "proximate cause" and its significance in
            proving a negligence claim. I do think my
            familiarity with the law proved helpful to
            fellow jurors; but I remain undecided as to
            whether it's advisable to have a lawyer
            serve on a jury--especially as its foreman.
            I am convinced that in our case my opinions
            swayed other jurors and were extremely
            influential in the final outcome.

            [Ibid.]

    On   remand,      the    trial    court    followed       our   directions     and

conducted   an   evidentiary         hearing    in    which    Martin     and   other

members of the jury testified and confirmed the undue influence




                                        60                                  A-3458-13T1
Martin had on the deliberative process.             In addressing this

outcome, we made the following comments with respect to the role

of the foreperson in a jury:

          Martin was designated foreperson of the jury
          by virtue of being juror number one--not by
          his   positions   as   state   senator,  law
          professor or lawyer.     As foreperson, his
          role   was   to   maintain   order   in  the
          deliberations, marshal the jurors' votes on
          the issues presented on the verdict sheet
          and to render the verdict on behalf of the
          jurors.   Otherwise, the jury foreperson is
          only one vote of six and his opinions have
          no greater weight than those of the other
          jurors. It is not the role of the foreperson
          to explain legal concepts to the other
          jurors.

          In short, our review of the entire record in
          this   case    convinces    us   that   Martin's
          explanations to the jury had a "tendency" to
          influence the verdict.         That "tendency,"
          coupled with the cumulative trial errors,
          deprived    defendant    of    a   fair   trial.
          Accordingly, we are constrained to reverse
          . . . .

          [Id. at 56 (first emphasis added) (citations
          omitted).]

      Thus, the role of the foreperson we described in Barber was

reaffirmed by the description approved by the Supreme Court in

the   Model   Charge.    In   the    course    of   deliberations,      the

foreperson    should    be    permitted       to    carry   out      these

responsibilities while at the same time holding and expressing a

point of view that is entirely at odds with those held by the

remaining members of the jury.       A juror has the right to stand



                                    61                            A-3458-13T1
firm on his or her convictions and decline to deliberate any

further.

       We do not fault the trial court's decision to accept the

initial note from the group of nine jurors with the cryptic

message "re deliberations."        It is the trial judge's duty to

investigate any claims that may affect the integrity of the

jury's deliberations.     See Dorsainvil, supra, 435 N.J. Super. at

487.    However, we hold the trial judge erred in deciding to rely

on a "spokesperson" to represent the views of the group.              Under

these   circumstances,   the    judge   should   have   interviewed    each

juror individually.      See State v. Brown, 442 N.J. Super. 154,

183-84 (App. Div. 2015).       This approach would have permitted the

judge to gauge the extent of the problem in a private setting

conducive to promote candor and honesty and less vulnerable to

any intimidation or unintended pressures associated with group-

thinking.

       By relying only on juror number 10's description of juror

number 1's alleged improprieties, the trial judge ran the risk

of receiving a skewed account of the events that led to the

conflict.     By engaging in a lengthy sidebar discussion with

juror number 10, the judge and counsel excluded the jurors he

was appointed to represent and unintentionally vested this juror

with the court's imprimatur, elevating his status within the




                                   62                            A-3458-13T1
jury.        The prejudice caused by this approach to defendant's

right to a fair trial was revealed when the trial judge accepted

at face value juror number 10's description of juror number 1's

conduct as "obstructionist" and stripped her of her role as

foreperson of the jury.

       Under these circumstances, the trial judge's reliance on

our decision in Rodriguez to strip juror number 1 of her title

as foreperson was misplaced.                 The defendant in Rodriguez was

tried before a jury and convicted of "fourth degree aggravated

assault (N.J.S.A. 2C:12-1b(4)); third degree terroristic threats

N.J.S.A. 2C:12-3); second degree possession of a handgun for an

unlawful       purpose     (N.J.S.A.     2C:39-4a);         and   fourth      degree

possession of a weapon (Molotov cocktail) for unlawful purposes

N.J.S.A. 2C:39-4(d))."            Rodriguez, supra, 254 N.J. Super. at

341.    After deliberations, the jury reported it had reached a

unanimous verdict on all eleven counts in the indictment.                          Id.

at 347.

       The    foreperson     initially        read    the    verdict     sheet      in

Rodriguez without incident.             "After the not guilty response to

count nine (possession of a handgun), the prosecutor brought a

disruption      in   the   jury   box   to    the    attention    of   the   judge."

Ibid.     Although the trial judge acknowledged the disruption, he




                                         63                                  A-3458-13T1
allowed the foreperson to continue to read the verdict until the

end.    Ibid.      The judge then made the following statement:

             I have to make an observation, we heard what
             we heard and we put on the record, but I
             seem, [sic] unless I'm wrong, some shaking
             their heads, I would suggest and I think I
             take it upon myself as a Judge and I think I
             have the authority to do that, that you go
             back and that you look at it, not that you
             look at your verdict because obviously if
             that's your verdict, that's up to you, I'm
             not interfering with that, I want you to
             know that, but apparently there has been
             shaking of heads. I would like you to go
             back and resolve whatever you have to
             resolve concerning that and then come back
             out again and I would ask you to do that,
             please.

             [Ibid. (second and third emphasis added).]

       The jury returned to the jury room as directed.                  When they

returned     to    the     courtroom    after   a   brief     recess,   the    judge

emphasized he "did not mean to intimidate anyone by sending them

back,   but       that    the    shaking   of   some    of    the   jurors'    heads

indicated a lack of unanimity."                 Ibid.    The foreperson again

began   to    read       the    verdict,   presumably    as    reflected      in   the

verdict sheet.           After the foreperson finished, counsel requested

the jurors be polled.               This immediately revealed that juror

number 8 did not agree with the verdict as reported by the

foreperson.        The trial judge again sent the jury back to the

jury room to confer.            Ibid.




                                           64                              A-3458-13T1
       "Shortly thereafter, the judge received a note from the

jury asking whether the [foreperson] could be changed." Ibid.

Overruling defense counsel's objection, the trial judge allowed

the jury to elect a new foreperson.                     Ibid.       The judge then made

the following statement to the jury: "I feel that in spite of

what the rule says, that there are always exceptions, so long as

they're done for the good, and as long as they're done for truth

and justice . . ."            Id. at 347-48.        The jury retired to the jury

room    one    more    time    to     continue    deliberations.                Id.   at   348.

After returning from a brief deliberation, the new foreperson

read the new verdict finding the defendant guilty "on counts

three, four, nine and ten.                 The final verdict on count eight was

changed from guilty to not guilty.                    The jury was polled and the

verdict was unanimous."              Ibid. (emphasis added).

       Based on these unusual facts, we affirmed the trial judge's

decision      to    allow     the   jury     to   elect    a    new       foreperson.        We

rejected the defendant's argument "that the trial judge's ruling

that the jury could elect a new foreperson violated [Rule] 1:8-4

and    may    have    served     to      coerce   the     original        foreperson       into

guilty verdicts in violation of his constitutional right to a

unanimous      verdict      by      an    impartial     jury."            Id.    at   349-50.

Although we acknowledged that the plain language in Rule 1:8-4

"does    not       contemplate       the    replacement        of     a    juror,     it    was




                                             65                                       A-3458-13T1
certainly within the ambit of the judge's discretion," to take

this action.        We noted that Rule 1:1-2 "authorizes relaxation of

the rules, to appoint a new foreperson where there were obvious

difficulties with the member of the jury originally designated."

Id.   at    350     (emphasis         added).         We       also    emphasized          that    by

correcting        the    obvious         mistake     in    the    original          two    misread

verdicts      the       defendant          actually        benefited          from       one   less

conviction.        Ibid.       "Hence, we perceive[d] no coercive influence

on    the   original       foreperson          or    on    any        juror    by    either       the

designation         of         a     new       foreperson             or      the        additional

deliberations."          Ibid.        (emphasis added).

       The circumstances the trial judge faced in Rodriguez stand

in sharp contrast to what occurred in this case.                                    Here, on the

second day of deliberations, the jury reported it had reached

"an    impasse"         based       on     eleven    jurors           wanting       to    continue

deliberating and one juror that did not.                                   The trial judge's

decision      to    remove          juror    number        1     from      the      position      of

foreperson was a direct response to his assumption that she was

the   juror    who       was       unwilling    to    continue          deliberating.             The

record reflects the judge characterized juror number 1 as an

"obstructionist" based only on juror number 10's revelations.

The decision to remove juror number 1 of her role as foreperson

was thus capable of being perceived as retaliatory and intended




                                                66                                         A-3458-13T1
to   coerce   her    into   changing      her    stance     against      reaching     a

unanimous     verdict.      This     is   precisely       the   type   of   coercive

action the Supreme Court declared unacceptable in Figueroa.

      In State v. Musa, 222 N.J. 554, 566 (2015), our Supreme

Court   declared     that   "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."               Here, the judge's decision to

strip juror number 1 of her role as foreperson merely because of

her perceived stance on deliberations, had the same potential

chilling effect on her right to disagree with the views espoused

by the other eleven jurors.

      Under Rule 1:8-2(a), "a deliberating jury in a criminal

action shall consist of 12 persons," unless otherwise stipulated

by the parties at any time before the jury returned the verdict.

Pursuant to Rule 1:8-9, "In every trial by jury the verdict

shall be returned by the jury to the judge in open court.                           The

verdict shall be unanimous in all criminal actions [.]"                       Thirty-

six years ago, our Supreme Court decided in Czachor to abandon

the then prevailing Allen10 charge in favor of the model charge

suggested     by    the   American    Bar      Association.        The      principal

10
  Allen v. United States, 164 U.S. 492, 17 S. Ct. 154, 41 L. Ed.
528 (1896).




                                          67                                 A-3458-13T1
concern    that   drove   the     Court's    decision       in   Czachor      was    the

intolerance of dissent expressed in the Allen charge.

            It is fair to say that the typical Allen
            charge does not simply remind jurors of
            their   duty  to   cooperate  in   collective
            deliberations. It has a rather different
            thrust. The charge is intended to undo a
            jury deadlock. It tends therefore to focus
            upon possibly the weakest links in the chain
            locking the jury in disagreement, namely,
            the minority holdouts on the jury. Hence,
            the charge usually admonishes specifically
            and pointedly only those in the minority to
            reconsider their beliefs in light of the
            adverse position held by the majority.

                   . . . .

            An instruction that explicitly directs only
            the dissenters to doubt the reasonableness
            of their convictions is inherently one-
            sided.

            [Czachor, supra, 82 N.J. at 398-99 (emphasis
            added).]

      Dissent     against    unanimity,        with   all        its    commensurate

inconvenience, is a constitutionally protected position for a

juror to take in the course of deliberations.                    It is a position

a   defendant     is   entitled    to   rely    on    and    one       the   court   is

obligated to protect as ancillary to the State's obligation to

prove defendant's guilt beyond a reasonable doubt to a unanimous

jury.     As noted by Justice Albin in Musa: "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




                                        68                                    A-3458-13T1
play any role in jiggering a jury panel's composition for the

purpose of imposing conformity."                 Musa, supra, 222 N.J. at 566.

Here,    the      trial     judge's     well-intended         preoccupation             with

promoting unanimity undermined defendant's right to a fair trial

and overwhelmed the jury's autonomous role as the judges of the

facts.

      Finally,      we     are   compelled       to     comment    on        the     judge's

decision     to    agree    to   meet   with      the    group     of    nine        jurors.

Confronted with allegations of impropriety in the deliberative

process, the judge should have interviewed each juror separately

and

             in the presence of counsel, to determine if
             there is a taint; if so, the inquiry must
             expand to determine whether any other jurors
             have been tainted thereby.   The trial court
             must then determine whether the trial may
             proceed after excusing the tainted juror or
             jurors, or whether a mistrial is necessary.

             [State v. R.D., 169             N.J.     551,   558   (2001)
             (citations omitted).]

Here, the judge's undue reliance on juror number 10's version of

events left a number of important issues unaddressed.                              Key among

them is the judge's failure to interview the two jurors who

chose not to join the group of nine's criticism of the way juror

number   1   was    discharging       her   responsibilities            as    foreperson.

Interviewing these two jurors separately could have given the




                                            69                                      A-3458-13T1
judge a valuable insight independent of the views heard from

juror number 10.

       It is well known that jury deliberations can be boisterous

and contentious.           However, as the Court noted in Figueroa and

recently reaffirmed in Ross, a trial judge's interactions with

the jury must be "guided by a concern for the weighty role that

the judge plays in the dynamics of the courtroom."                            State v.

Ross, 218 N.J. 130, 145 (2014) (quoting Figueroa, supra, 190

N.J.    at    238).        Unlike    interviewing       an   individual       juror    in

response to a personal matter or concern, a judge's decision to

meet with a group of jurors in response to how deliberations are

being conducted may thrust the judge in the midst of an internal

debate over which the judge cannot be viewed as a partisan.

       As    this   case    illustrates,        any    attempt     by   the   judge   to

mediate the dispute or ameliorate the hostility only sucks the

court   deeper      into    the     vortex.      The    deliberative       process     is

designed to be confidential to promote the free exchange of

ideas and points of view.             Musa, supra, 222 N.J. at 568.               Other

than    charging      the    jury     with      the    supplemental       instructions

approved by the Supreme Court in Czachor which, inter alia,

exhorts each juror "not [to] surrender your honest conviction as

to   the     weight   or    effect    of     evidence    solely     because     of    the

opinion      of   your     fellow    jurors,     or    for   the   mere    purpose     of




                                           70                                  A-3458-13T1
returning a verdict," a trial judge has no role to play in

facilitating     the    jury's     discussions       or    promoting    unanimity.

Czachor,   supra,      82   N.J.   at   405    n.4   (quoting     ABA   Project   on

Minimum Standards for Criminal Justice, Standards Relating to

Trial by Jury, § 5.4 cmt., at 146-47 (Approved Draft 1968)).

Unfortunately, the record we have taken the time to recite at

length shows the trial judge asking jurors on more than one

occasion to "tell me what you think I should need to know to try

to move this towards a verdict."

      The decision to grant a mistrial rests within the sound

discretion of the trial judge.                R.D., supra, 169 N.J. at 558.

We are satisfied the record here shows the trial judge erred in

the   exercise   of     this    discretion      when      he   denied   defendant's

applications for a mistrial.             Because this issue is sufficient

to warrant the reversal of defendant's conviction, we do not

reach   the   remaining        arguments      raised      by   defendant   in   this

appeal.

      Reversed and remanded for a new trial.                    We do not retain

jurisdiction.




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