                   NOT FOR PUBLICATION WITHOUT THE
                  APPROVAL OF THE APPELLATE DIVISION

                                     SUPERIOR COURT OF NEW JERSEY
                                     APPELLATE DIVISION
                                     DOCKET NO. A-0211-12T1
                                                 A-3356-13T1

STATE OF NEW JERSEY,

     Plaintiff-Respondent,              APPROVED FOR PUBLICATION

v.                                          August 31, 2015

                                          APPELLATE DIVISION
RASHON BROWN,

     Defendant-Appellant.

__________________________

STATE OF NEW JERSEY,

     Plaintiff-Respondent,

v.

MALIK Q. SMITH,

     Defendant-Appellant.

___________________________


         Submitted (A-0211-12) January 14, 2015;
         Submitted (A-3356-13) March 25, 2015 -
         Decided August 31, 2015

         Before Judges Fuentes, Ashrafi and O'Connor.

         On appeal from Superior Court of New Jersey,
         Law Division, Union County, Indictment No.
         09-04-0281.

         Joseph E. Krakora, Public Defender, attorney
         for appellants (Karen E. Truncale, Assistant
         Deputy Public Defender, of counsel and on
            the brief in A-0211-12; Monique Moyse,
            Designated Council, on the brief in A-3356-
            13).

            Grace H. Park, Acting Union County Prosecutor,
            attorney for respondent (Kimberly L. Donnelly,
            Special    Deputy   Attorney    General/Acting
            Assistant Prosecutor, of counsel and on the
            brief in A-0211-12; Stephen K. Kaiser,
            Special    Deputy   Attorney    General/Acting
            Assistant Prosecutor, of counsel and on the
            brief in A-3356-13).

            Appellant in A-0211-12          filed    a     pro   se
            supplemental brief.

            The opinion of the court was delivered by

FUENTES, P.J.A.D.

      We consolidate these two appeals because Rashon Brown and

Malik Q. Smith were tried together before the same jury.                    The

jury found both defendants guilty of first degree carjacking and

other related offenses.       We are compelled to reverse the jury's

verdict because the trial judge failed to remove a deliberating

juror who disclosed her racial bias to two of her fellow jurors

and to the judge.

      Specifically, on the second day of deliberations, Juror 4

told Jurors 5 and 12 she was "concerned" and "nervous" because

she   had   seen   two   African-American    men    that    morning   in    the

neighborhood where she lives.       Juror 4 noted, "[t]hey certainly

don't live around there, and they don't hang around there."

Juror 5, who works in that area, agreed that this seemed strange




                                    2                                 A-0211-12T1
because that area "mostly is Italian and White people.                         There

really     are    no    Black    people   around    there."        Because       both

defendants are African-American, Juror 4 feared the presence of

two African-American men in her neighborhood may have had some

kind of sinister connection to the trial.

    Jurors 5 and 12 were sympathetic with juror 4's predicament

and suggested she should report her concerns to the Sheriff's

Officer     who        was   assigned     to     secure      the     jury    during

deliberations.         The Sheriff's Officer informed the trial judge,

who then questioned each of the three jurors separately.                          The

judge decided to allow all three jurors to remain on the jury

and continue deliberating after they assured him this incident

did not have an effect on their impartiality, they would follow

the court's instructions on the law, and they would base their

verdict only on the evidence presented at trial.

    On these facts, we are compelled to reverse.                     When Juror 4

inferred    a     sinister      conspiratorial     purpose    from    a     facially

innocuous event, based only on the race of the participants, she

revealed a deeply-rooted, latent racial bias that required her

removal from the jury.           The trial judge erred in permitting her

to remain on the jury and continue deliberating merely based on

the juror's self-serving denial of racial bias.                       Her initial

instinctive, subliminal association of race with criminality or




                                          3                                 A-0211-12T1
wrong-doing      far   trumped      her   subsequent       assurances      of

impartiality.     In her willingness to come forward and candidly

report her misgivings, Juror 4 also revealed her unawareness of

how engrained her racial bias was in her subconscious.                  This

incongruity between Juror 4's conscious acts and latent beliefs

is one of the most pernicious, unintended aspects of our jury

system.

    Our pretrial jury selection screening process is designed

and intended to detect and filter out jurors who harbor views or

beliefs   that   are   per   se    incompatible   with    the   judiciary's

mission to deliver equal justice under law.              However, like all

things designed by the human mind, the pretrial jury selection

process is not perfect.           This requires our colleagues at the

trial level to be in a constant state of vigilance throughout a

jury trial for any signs of racial bias or other extraneous

matters that may affect a juror's impartiality.             Once a juror's

latent or overt racial bias is discovered, the juror must be

removed from the jury.        Thereafter, the judge must conduct a

comprehensive, fact-sensitive inquiry to determine whether the

removed juror's odious beliefs are shared by any other member of

the jury or has otherwise tainted the remaining jurors to such

an extent that a mistrial is warranted.




                                      4                            A-0211-12T1
       Furthermore, and independent of this error, the trial judge

also failed to take proper measures to determine whether Jurors

5 and 12, who initially shared Juror 4's concern and advised her

to report this event to the Sheriff's Officer, harbored similar

latent racial biases.         As we will discuss and explain in greater

detail, infra, the record shows the trial judge also failed to

conduct a thorough and probing examination of these two jurors.

This    failure     left    unresolved    whether    Jurors      5    and   12    were

capable of discharging their duty to judge the evidence fairly

and impartially.

                                         I

       On   April    2,    2009,   a   Union    County   Grand       Jury   returned

Indictment No. 09-04-00281, charging defendants Rashon Brown and

Malik Q. Smith with first degree carjacking, N.J.S.A. 2C:15-2,

first    degree     armed   robbery,     N.J.S.A.   2C:15-1,         second     degree

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

4a, second degree unlawful possession of a firearm, N.J.S.A.

2C:39-5b, third degree terroristic threats, N.J.S.A. 2C:12-3a

and/or      N.J.S.A.      2C:12-3b,    fourth     degree   resisting          arrest,

N.J.S.A. 2C:29-2a, and fourth degree possession of a prohibited




                                         5                                    A-0211-12T1
device in the form of a type of ammunition known as "hollow

nose"1 bullets, N.J.S.A. 2C:39-3f.

       The    same   indictment         charged   Brown      with    third     degree

aggravated       assault        by      "knowingly,       under       circumstances

manifesting extreme indifference to the value of human life,"

pointing or displaying a firearm, at or in the direction of a

law    enforcement      officer,      N.J.S.A.    2C:12-1b(9),        third    degree

hindering apprehension in connection with the investigation and

prosecution of the crimes of first degree carjacking and first

degree       robbery,     N.J.S.A.       2C:29-3b(4),        and    fourth     degree

hindering apprehension in connection with the investigation and

prosecution of the crime of third degree aggravated assault,

N.J.S.A. 2C:29b(4).

       Defendants       were    tried    together     over     a    ten-day    period

commencing on February 22, 2012, and ending on March 14, 2012.

The jury found Brown guilty of all of the charges, except for

two    counts.       The       jury   acquitted     Brown     of    second     degree

aggravated assault by pointing a handgun at two police officers,

N.J.S.A. 2C:12-1b(9),2 and fourth degree possession of prohibited


1
  Although the Indictment uses the term "hollow point bullet,"
N.J.S.A. 2C:39-3f describes this type of ammunition as a "hollow
nose or dum-dum bullet."
2
    Smith was not indicted for this offense.




                                           6                                  A-0211-12T1
ammunition under N.J.S.A. 2C:39-3f.                   The jury found Smith guilty

of all charges except for one.                    The jury acquitted Smith of the

charge    of    fourth    degree       possession         of    prohibited       ammunition

under N.J.S.A. 2C:39-3f.

       The trial court sentenced Brown to serve an aggregate term

of twenty-five years, subject to an eighty-five percent period

of parole ineligibility and five years of parole supervision as

mandated by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

The court sentenced Smith to serve an aggregate term of twenty-

three years, subject to an eighty-five percent period of parole

ineligibility and five years of parole supervision as mandated

by NERA.       Brown filed his notice of appeal on September 6, 2012.

Smith filed his notice of appeal on March 18, 2014.3

       Brown    and     Smith    are     represented           by     separate    appellate

counsel and have filed separate briefs.                        Brown has also filed a

supplemental       pro     se        brief     raising         additional        arguments.

However, both defendants have raised the issue of racial bias

with    respect    to    one    juror,       and   demand       we    vacate     the    jury's

verdict and remand the matter for a new trial.                                 Because the

trial    court's      error     with    respect       to       this    one   issue       is    of

sufficient      magnitude       to    vitiate       the    legal       viability       of     the


3
  By order dated April 10, 2014, this court granted Smith's
motion to file his notice of appeal "as within time."



                                              7                                        A-0211-12T1
jury's verdict as a whole, we need not and specifically do not

reach the remaining arguments raised by both defendants.

      We recite the following facts from the evidence presented

at trial.

                                        II

      On December 11, 2008, at approximately 2:20 p.m., Evelyn

Arroyo-Maultsby was inside her brand new, white Infiniti that

she   had   parked   in   front    of   her    daughter    Janna's      apartment

complex located on Schley Street in the Township of Hillside.

She was waiting for Janna, who had gone into her apartment to

retrieve something.       While she waited, a young man tapped on her

car window and opened the door.                Thinking he may have been

confused,    Arroyo-Maultsby      grabbed     the   door   to   close    it,   and

said, "this is my car."           The man told her to "get out of the

car" and grabbed the door again.             He then told her to get of the

car again.     It was at that moment that Arroyo-Maultsby asked,

"[a]re you carjacking me[?]"            The man just looked at her and

again demanded that she get out of the car.

      Arroyo-Maultsby begged the young man not to do this.                     She

testified she told him repeatedly he was going to ruin his life.

At that point, the man opened his jacket and showed her his gun. 4


4
  Based on Arroyo-Maultsby's physical demonstration while she was
on the witness stand, the trial judge confirmed for the record
                                                      (continued)


                                        8                                A-0211-12T1
Arroyo-Maultsby grabbed her pocketbook and walked out of the car

"because once I saw the gun, I knew he was serious."               However,

the man told her to put the purse back in the car.                 Arroyo-

Maultsby testified this made her angry.         Despite the potentially

dangerous circumstances, she testified:

         I stomped my feet [as] if he was my kid, and
         I said, you want my pocketbook too, you're
         taking my car and you want my pocketbook
         too.   Well, then can I at least have my
         license now that you're taking my car. And
         then he said, yes, you could have your
         license.

    In response to the prosecutor's question, Arroyo-Maultsby

gave the following description of her assailant:

         A. He was young. He was a Black boy, and he
         had dreads, and he had his hoodie over his
         head, and I still was able to see his face.

         Q. Tell    us   about   the      clothing      he   was
         wearing.

         A. He was wearing black.

              . . . .

         Q. How close was he         to   you    when    you're
         outside of the car?

         A. Oh, face to face, like my nose to nose,
         that close. He's just a little taller than
         me, so I was like here.

         Q. Okay.   How tall are you?


(continued)
that when he opened his jacket, the young man had the gun on the
right side of his waist.



                                 9                                 A-0211-12T1
             A.   I'm  5'3",   almost           5'4",     5'3    1/2",
             something like that.

             Q. What was your observations about the
             height of the person that you're speaking
             with?

             A. Maybe 5'8", I guess.           He was taller than
             me.

The witness also described her assailant as a young Black man,

with black hair, and no facial hair.

      When this brief harrowing encounter ended, Arroyo-Maultsby

began walking toward the front of her daughter's building.                       As

she approached, she saw her daughter standing there.                     Arroyo-

Maultsby     motioned   to    her    daughter    to     remain   where   she   was

because she was afraid of what could happen to her if she made

any   kind   of   movement.         However,   Arroyo-Maultsby      mouthed    the

words "9-1-1" to her daughter, but Janna signaled she did not

have a cell phone.      Arroyo-Maultsby then saw the young assailant

get into her car.            As he backed up the vehicle, she turned

around and saw a second man walking around the car.                      At that

moment she realized this second man was waiting to get into the

passenger seat of her car.              The two men drove away, heading

south towards Route 78.




                                        10                               A-0211-12T1
    Arroyo-Maultsby       called    9-1-1    immediately    thereafter      to

report     the   carjacking.5      Several   police     officers   from    the

Hillside    Police   Department    arrived   at   the    apartment   complex

within minutes.       Detective Michael D. Ricci, Detective Peter

Corvelli, Detective James Holmes, and Lieutenant Matthew Ross

left the police station and set out toward the scene of the

carjacking at Schley Street.         While en route, they learned over

the police radio that the Infiniti had left the scene and was

heading towards Edwin Place in Newark.            The previous week, the

Hillside Police Department recovered a carjacked vehicle near

Edwin Place.

    Lieutenant Ross testified they saw a vehicle fitting the

description of the carjacked car when they reached the area of

Clinton and St. James Place.        After confirming the license plate

number matched the plate number of the carjacked Infiniti, Ross

testified the police officers executed a "tactical box" of the

car, blocking its path in every direction.              Ross testified the

Infiniti "rammed Detective Ricci's car that was performing the

other side of the tactical box."

    Once the Infiniti was completely blocked, Ross saw "[t]he

driver immediately jump[] out of the car and had in his hand a

5
  The recording of the 9-1-1 call was played to the jury without
objection from defense counsel.




                                     11                              A-0211-12T1
black   semi-automatic      handgun."           When   Ross     yelled    "gun,"    the

driver "immediately turned and bolted over a fence that was at

the house's driveway."            Detective Corvelli also testified he

yelled "gun, gun," when he saw the driver run from the scene

after he stepped out of the boxed-in vehicle.                    Ross and Corvelli

both    testified   they    saw    the    driver       point    the    gun   at    them

immediately before he fled.

       Ross also saw a person jump out of the passenger side of

the Infiniti.       This person ran between the vehicles towards

Ross, "at which time [Ross] grabbed him by his jacket."                            Ross

testified that by grabbing his jacket, it caused him to "[spin]

. . . around so we were facing each other.                     He pulled out of my

grasp and ran east on St. James [Place]."                         The four police

officers at the scene immediately began to pursue both suspects

on foot.    Holmes and Corvelli hopped over the fence and pursued

the driver down a driveway and into a yard; Ross and Ricci

pursued the passenger.            Corvelli testified they lost sight of

the    driver   when   he   jumped       over    another       fence     adjacent   to

Willoughby Street.

       Ross stopped pursuing the passenger when he heard "shots

fired" when he was "[m]aybe a house . . . and a half away from

the original crime scene."           Corvelli also testified to hearing

gunshots fired.        When Corvelli reached Willoughby Street, he




                                         12                                  A-0211-12T1
learned    the   gunshots    had    been   fired       by   Detective     Holmes.

Corvelli estimated he heard four or five gunshots.                   Holmes had

shot the alleged driver of the Infiniti in the foot.                    This man

was subsequently identified as defendant Rashon Brown.6

     According to Corvelli, in the process of searching the area

for Brown, "a lady" motioned to them through a window that "she

saw an individual either hide under her porch or go into her

porch area."     Corvelli yelled to Lieutenant Ross that the driver

was hiding in the porch area.          Ross, who had been pursuing the

passenger down St. James Place until he heard the gunshots, ran

back towards Holmes and Corvelli.               They eventually found Brown

hiding under a pile of clothes on the woman's porch.                  Brown was

taken to the hospital, where he identified himself as Kareem or

Kashawn Ledbetter.       Ross and Corvelli identified defendant at

trial as the driver of the vehicle and the man they apprehended.

     Arroyo-Maultsby learned the police had recovered her car

while   she    was   still   in    front   of    her    daughter's      apartment

complex.      She therefore went to the Hillside Police Department


6
  Neither the State nor defendant called Detective James Holmes
as a witness in this case.    The record shows that at the time
this case came for trial, Holmes was no longer a member of the
Hillside Police Department.   As reflected in the colloquy that
took place in open court on February 23, 2012, Holmes was
charged and convicted of shooting his stepson before the start
of trial. Presumably, Holmes thereafter forfeited his position
as a police officer, as mandated by N.J.S.A. 2C:51-2.



                                      13                                 A-0211-12T1
to submit her formal statement.           Arroyo-Maultsby and her family

went   to   the   Newark   Police   Department     the   following    day     to

reclaim her pocketbook and sign a form giving her consent for

the police to search the Infiniti.           While she was sitting at a

detective's desk waiting to complete the consent to search form,

Arroyo-Maultsby saw the young man who had carjacked her car

being led through the room.         She gave the following account of

what transpired:

            A. While I was waiting for the guy, the
            police officer to give me -- I believe that
            was a detective -- waiting to give me the
            paperwork so I could fill out, I saw a young
            guy come in, and -- it was just, it was just
            a coincidence.    [The police officer] said
            that was the boy that carjacked you.

            Q. Was that person in the same room as you
            in Newark?

            A. Yeah, he was walking in, and I looked
            right at him, and he looked right at me.

            Q. And what happened          when   you   made   [sic]
            that realization?

            A. I broke down and told my daughter that
            was the boy that carjacked me.

            Q. Was your daughter at the Newark Police
            Department with you?

            A. Yes.

            Q.   Ms.    Arroyo-Maultsby, is  that your
            daughter   Janna, who was with you the day
            before?

            A. No.



                                     14                               A-0211-12T1
Q. A different daughter?

A. A different daughter.

Q. What is it about the person that you saw
in Newark on the 12th of [December] 2008
that you recognized from the carjacking?

A. When he came in and as he was getting
closer, I looked straight at his face.   He
looked at me, and I noticed those eyes, his
skin, those dreads, and I just knew it was
him.

Q. After you turned to your daughter, did
you speak to anybody else about your
observation?

A. At first, I didn't realize if anybody
heard me. I was just talking to her, and I
just broke down.

    . . . .

Q. And then did you tell detectives why you
were upset?

A. The detectives was asking [sic] me why I
was so upset, so I had to tell them.

Q. Ms. Arroyo-Maultsby, do you see the
person in court today that you saw at the
Newark Police Department on the 12th of
December, 2008?

A. It's hard to tell.      He's wearing glasses
now.

Q. Ms. Arroyo-Maultsby, who is it that
you're saying it's hard to tell because he's
wearing glasses? Who are you indicating?

A. The one with the dreads.         His   dreads
wasn't [sic] that long.




                     15                            A-0211-12T1
       Arroyo-Maultsby    eventually    identified   defendant   Brown   as

the person she saw at the Newark Police Station on December 12,

2008.    He was the same person who carjacked her car the previous

day, December 11, 2008.       Arroyo-Maultsby emphasized no one told

her ahead of time she would see the man who the police had

arrested and charged with carjacking her car.             She was there

only to sign the consent form to permit the police to search her

car.

       Lieutenant Joseph Zeiser of the Newark Police Department

testified he saw Arroyo-Maultsby sitting and talking with one of

the detectives when he noticed she became visibly upset.                 He

walked over and asked her whether she needed any assistance or

medical attention.       According to Zeiser, she told him "that was

the guy who carjacked me yesterday."           Because Zeiser was not

aware of defendant's identity at the time, he asked Arroyo-

Maultsby to clarify.       She stated, "the guy who just walked in

here with the two officers."

       The State also called two expert witnesses as part of its

case-in-chief.    Monica Ghannam, a forensic scientist from the

Union County Prosecutor's Office, and Thomas Chung, an expert in

firearms, ballistics, and tool mark examination.          Ghannam tested

three items recovered inside the Infiniti: a pair of gloves, a

black and white glove, and a red baseball hat.              She excluded




                                   16                             A-0211-12T1
Brown as a DNA contributor to the red baseball hat and to one of

the gloves.         Chung examined five handguns, four of which were

police service weapons, as well as four spent casings discharged

from Holmes' service weapon.             The non-police firearm was a Sig

Sauer   semi-automatic        pistol   loaded    with    nine    live    rounds    of

ammunition, one of which was a hollow point bullet.                     Chung found

this    weapon    initially     inoperable      until    he    cleaned    it.     He

testified the weapon was fully operable.

       Brown testified in his own defense.               He was eighteen years

old    at   the   time   of   the    carjacking.        He    denied    having    had

anything to do with the carjacking.              Brown testified he stopped

to speak briefly with the occupants of the white Infiniti when

he noticed the unmarked police cars and decided to leave before

they suspected him of being involved in some wrong-doing.                          He

witnessed     the    unmarked       police    vehicles       "box-in"    the    white

Infiniti.      Brown testified he saw two men flee from inside the

Infiniti when the police officers stepped out of their unmarked

cars with their guns drawn.

       From this point, Brown said he ran toward Willoughby Street

because he saw Detective Holmes chasing him with his gun drawn.

As he jumped over a gate, Brown testified Holmes shot him in the

foot.       He ran to a nearby house where the police eventually

found him.        Brown denied ever having a handgun on that day.




                                         17                                A-0211-12T1
Defense counsel also called Jason Glover, a friend of defendant

Brown.     Glover testified Brown was at his house earlier that

day, prior to the arrest.              He testified Brown left the house

approximately half an hour before Brown was arrested.                       Glover

further    testified     that    about    ten    minutes     before    discovering

Brown had been arrested, he heard shots.                   Glover resides on the

corner of Aldine Street and St. James Place.                  Glover was twenty-

four years old at the time of trial.                      He admitted to having

prior criminal convictions.              At the time he testified, Glover

was   in   a   halfway   house    as   part     of   a    four-year   sentence    he

received for a third degree offense.

                                         III

      In the process of canvassing the area where the carjacking

occurred, Detective Ricci located an individual who claimed to

have witnessed Smith get out of the white car.                        He described

Smith as having a tattoo on his left forearm.                  Ricci and another

detective searched the Essex County Jail's website for the name

"Malik Smith" and found four matches.                    Defendant Smith was one

of those four matches.           Although Ricci did not see the man who

ran from the passenger side of the Infiniti, he believed Smith

was a viable candidate to include in the photo array because he

matched the height, weight, and had a left forearm tattoo.




                                         18                               A-0211-12T1
       Approximately one month after Brown's arrest, Lieutenant

Ross testified that Detective Ricci told him they had a suspect

in   the   carjacking       case.      Ricci      wanted    Ross     to    look   at    a

photographic7 array Hillside Detective Nancy Swider had prepared

containing     six        photographs      of     individuals        matching        the

description of the man Ross saw run out of the Infiniti from the

passenger-side of the car on December 11, 2008.                      Ross testified

Ricci did not discuss with him anything about the status of the

investigation     at      that   point.         Ross   also   did    not    speak      to

Detective    Corvelli      about     any   of    the   individuals        depicted     in

these photographs.

       Despite Lieutenant Ross's seniority in the Hillside Police

Department and experience as a police officer, Ross testified he

told   Corvelli      to    explain    to    him    the     process    and    protocol

involved in identifying an individual through this procedure:

            A. Yeah, I said we're not going to cut any
            corners, I'm actually a witness, not your
            boss at this point, and we have to do this
            the proper way.   And he went through the
            whole packet.

                  . . . .

            Q. . . . Lieutenant[,] [a]fter having those
            instructions given to you, did you sign and

7
  Ross used the term "six-pack" to describe a photo array
containing six photographs. The prosecutor identified the array
as S-92. Ross described it as "a group of six pictures that go
inside a wooden box, and you look at the pictures."



                                           19                                 A-0211-12T1
         date the    instruction    form   with   Detective
         Corvelli?

         A. Yes, I did.

         Q. And then what happened?

         A. Then he gave me that six-pack wooden box
         there, and I went through each photograph,
         identifying photo number 3.

              . . . .

         Q. Now, [Lieutenant] just for the record,
         you opened window one, closed window one,
         similar to --

         A. Opened two, closed two.    Opened three.
         Yes, each one you have to open, and as per
         the instructions, you have to close it
         because, like I said, they don't want you
         comparing photos and confusing yourself or
         others, whatever.

         Q. And you just returned to number 3?

         A. I returned to number 3 and told him it
         was number 3.

         Q. And what is number -- who did you tell
         Corvelli number 3 was?

         A. Number 3 was the guy I grabbed that got
         away from me when he fled from inside of the
         highjacked vehicle.

    The investigating detectives did not show the photo array

to Arroyo-Maultsby or her daughter Janna because neither were

able to describe the second individual who was in the passenger

side of the car.   Ghannam, the forensic scientist from the Union

County Prosecutor's Office, found she could not exclude Smith as




                               20                             A-0211-12T1
a major DNA contributor in material she recovered from a glove

recovered from inside the Infiniti by Detective Ricci.                 Ghannam

also    opined     she   could   not   exclude   Smith   as   a     major   DNA

contributor to the red baseball hat found in the Infiniti.

       Smith did not call any witnesses and did not testify in his

own defense.       The court denied his pretrial motion to exclude

the photo array identification.

                                       IV

       Defendant    Brown,   through    counsel,   raises     the    following

arguments:

           POINT I

           THE COURT COMMITTED REVERSIBLE ERROR WHEN IT
           PERMITTED THE VICTIM TO VIEW THE DEFENDANT'S
           ARREST PHOTO DURING TRIAL IN ORDER TO ELICIT
           AN IDENTIFICATION.

           POINT II

           THE COURT ERRED IN NOT EXCLUDING TESTIMONY
           THAT THE DEFENDANT WAS APPREHENDED IN AN
           AREA WHERE A CARJACKED VEHICLE HAD BEEN
           RECOVERED THE PREVIOUS WEEK.    (Partially
           Raised Below)

           POINT III

           A DELIBERATING JUROR'S BELIEF, BASED SOLELY
           UPON RACE, THAT TWO AFRICAN-AMERICAN MEN
           WHOM SHE SAW IN HER NEIGHBORHOOD WERE
           CONNECTED WITH THE TRIAL AND MIGHT BE A
           THREAT TO HER WELL-BEING, WARRANTED EITHER A
           MISTRIAL OR HER REMOVAL AND THE SUBSTITUTION
           OF AN ALTERNATE.




                                       21                             A-0211-12T1
          POINT IV

          THE SENTENCE OF 25 YEARS, 85% TO BE SERVED
          BEFORE PAROLE UNDER NERA, WAS MANIFESTLY
          EXCESSIVE.

    Brown has also filed a pro se supplemental brief in which

he raises the following additional argument points:

          POINT I

          DEFENDANT WAS DENIED HIS CONSTITUTIONAL
          RIGHT OF DUE PROCESS TO A FAIR TRIAL WHEN
          THE POLICE STAGED EVENT AND TOLD THE VICTIM
          THAT DEFENDANT WAS HER ATTACKER AND UNDULY
          SUGGESTED THE IDENTIFICATION.

          POINT II

          THE VERDICT WAS AGAINST THE WEIGHT OF THE
          EVIDENCE WHEREFORE THE CONVICTION MUST BE
          REVERSED   AND  THE  INDICTMENT  MUST  BE
          DISMISSED.

          POINT III

          THE DEFENDANT WAS DENIED HIS RIGHT OF A FAIR
          TRIAL BY PROSECUTORIAL MISCONDUCT, WHEREFORE
          THE CONVICTION MUST BE SET ASIDE AND A NEW
          TRIAL AWARDED.

    Smith, through counsel, raises the following points in his

appeal:

          POINT I

          THE TRIAL COURT DEPRIVED MR. SMITH OF HIS
          RIGHTS TO DUE PROCESS AND A FAIR TRIAL BY
          FAILING TO DISMISS A DELIBERATING JUROR FOR
          RACIAL BIAS AND FAILING TO VOIR DIRE THE
          PANEL ADEQUATELY TO GUARANTEE THAT IT WAS
          FREE FROM ANY RESULTING TAINT.




                               22                        A-0211-12T1
         POINT II

         PROSECUTORIAL MISCONDUCT DURING SUMMATION
         DEPRIVED MR. SMITH OF HIS RIGHT TO DUE
         PROCESS. (Not Raised Below)

         POINT III

         THE LOWER COURT ERRED IN ADMITTING EVIDENCE
         OF THE IMPERMISSIBLY SUGGESTIVE OUT-OF-COURT
         INDENTIFICATION OF DEFENDANT BY LT. ROSS AND
         THE      RESULTING      TAINTED     IN-COURT
         IDENTIFICATION, THEREBY DENYING DEFENDANT'S
         RIGHTS TO DUE PROCESS AND A FAIR TRIAL.
         (U.S. CONST. AMENDS. VI, XIV; N.J. CONST.
         (1947), ART. I, pars. 1 and 10.)

         POINT IV

         THE TRIAL COURT'S FAILURE TO CHARGE THE JURY
         ON CROSS-RACIAL IDENTIFICATION DEPRIVED MR.
         SMITH OF HIS RIGHT TO DUE PROCESS AND A FAIR
         TRIAL. (U.S. Const. Amends. V, VI, AND XIV;
         N.J. Const. (1947), Art. I, Pars. 1, 9, and
         10.) (Not Raised Below)

         POINT V

         THE TRIAL COURT DEPRIVED MR. SMITH OF HIS
         RIGHTS TO DUE PROCESS AND A FAIR TRIAL BY
         FAILING TO STRIKE REPEATED TESTIMONY THAT
         THE POLICE FOUND THE INFINITI IN AN AREA
         WHERE THEY HAD FOUND A CARJACKED VEHICLE ONE
         WEEK EARLIER.

         POINT VI

         THE TRAIL COURT ABUSED ITS DISCRETION       BY
         IMPOSING A MANIFESTLY EXCESSIVE SENTENCE.

    Both defendants raised the manner in which the trial court

handled the disclosure juror 4 made during the second day of

jury deliberations as a dispositive issue in these appeals.      We




                              23                          A-0211-12T1
agree.   A comprehensive recitation of the event is necessary,

before we address the legal implications of the trial judge's

decision.

    At the start of the afternoon session on the second day of

jury deliberations, the trial judge addressed the attorneys to

place the following event on the record:

            THE COURT: Counsel, it is now 1 o'clock. A
            sheriff's officer approached me during lunch
            hour and told me that Juror Number 4 spoke
            to him during the lunch hour and indicated
            that she saw some men outside of her house
            today and was inquiring whether it might
            have anything to do with this case.

            Out of an overabundance of caution, my
            intention is to speak to that juror and ask
            her what her concerns were, what she saw,
            and whether what she saw would affect her
            being able to continue in her deliberations.

            Now, the issue becomes, do I do this in open
            court on the record, or would counsel prefer
            that I do it chambers, with just counsel and
            myself present, putting it onto Court Smart
            so that in case there would be any reticence
            to speak freely, she might feel more free to
            speak in chambers.   What's your preference,
            counsel?

            [PROSECUTOR]: I think the      second   option
            would be more appropriate.

            [BROWN DEFENSE COUNSEL]: I would prefer to
            do it in chambers because I think she would
            be more free to speak.

            THE COURT:   [Inquires from Smith's counsel.]




                                  24                         A-0211-12T1
[SMITH DEFENSE COUNSEL]: Yeah, I would agree
with that. I don't know how complicated it
is for . . . the court reporter --

THE COURT: No, we're not going to be able to
use [the court reporter].

     . . . .

I would put it on Court Smart, and we will
record it separately.   I'll even set your
clients up with earphones, so that they can
hear what's being said when we go into
chambers.

[SMITH DEFENSE COUNSEL]: Okay.    Thank you.

(Recess)

(Voir    dire    in    chambers         conducted,
[s]tenographically,   utilizing        the   court
reporter.)

(Juror   Number   4   enters     the    [c]ourt's
chambers.)

THE COURT: Please come on in.    Take a seat
for a minute.      I don't want you to be
nervous about this, but I was speaking to my
sheriff's officer, and he tells me that you
spoke to him during the lunch break today.

JUROR NO. FOUR: Yes, coming back.

THE COURT: And you talked about         something
you saw this morning.

JUROR NO. FOUR: Yes, I went out at 7 o'clock
this morning to get into my car. As soon as
I turned the ignition on, two dark Black
fellas came out of the park.     My car was
facing the parking lot that we use, and a
lot of people go in and jog.     But I have
never seen these gentlemen before.   One was
a very, very tall man, must have been 6[']
4["], 6['] 5["].      And he was carrying



                      25                             A-0211-12T1
         sneakers, and he was hurrying down the
         street. The other one was sort of an older
         man, and he was light skinned, but he was
         Black, you know, lighter skin.

         THE COURT:   Okay.

         JUROR NO. FOUR: And he just stood there. He
         didn't do anything. I didn't -- I thought I
         saw him looking at my car, but then he went
         down the street too.

         THE COURT: Did you connect that with this
         case in any way?

         JUROR NO. FOUR: Well, I   just said isn't that
         coincidental, I never     saw anybody in the
         park.   And I said to     myself, you know, I
         just don't want to be      nervous about this,
         but --

         THE COURT: But would what you saw affect
         your ability to continue your deliberations
         in this matter?

         JUROR NO. FOUR: No, but I was concerned
         about my wellbeing.   I don't know if, you
         know, I was going to be stalked someplace,
         because I mean I don't know these people.
         They certainly don't live around there, and
         they don't hang around there.     I'm from
         Union, so . . .

         THE COURT: And where in Union do you live?

         JUROR NO. FOUR: I live at [a particular
         point   of  reference][8] near   [the  same
         particular point of reference], one long
         block in from [the same particular point of
         reference].




8
  We have decided not to disclose the       particular    point   of
reference to protect the juror's privacy.



                              26                           A-0211-12T1
THE COURT: And was there anything that made
you connect what you saw today with this
case other than the race?

JUROR NO. FOUR: No, not unless because it's
a case that they're both Black, and I'm on
the case.   And I said, gee, that's funny,
you know. I wasn't concerned about it when I
first went on the case, but I was wondering
if they would stalk you if they're found
guilty, whatever, you know, if they would go
after any of the jurors.

THE COURT: There's some anonymity in this,
in these procedures, and in my experience,
that never happens. I'm trying to put your
mind at ease in that regard.      Have you
spoken to any of your fellow jurors about
this?

JUROR NO. FOUR: I did, you know, when we
were going out to lunch.      And they said,
well, if you're a little concerned, you
could mention it to the police.

THE COURT: Who did you speak to?

JUROR NO. FOUR: I told [Juror 12] and [Juror
5] and the other one.     I forget what her
name is, something like . . .

THE COURT: Okay.

JUROR NO FOUR: And she said, well, if you're
concerned -- she works right next [door] to
where I live, and she said that's not a
place where they would hang out. And so she
says, if you'd feel better about it, you
could mention it to one of the police
officers here. So that's what I did.

THE COURT: But what happened to you today,
that would not affect you continuing your
deliberations in this case?




                     27                        A-0211-12T1
JUROR NO. FOUR: Not really, I guess.         You
know, not really.

THE   COURT:  Counsel,     do   you   have   any
questions of [Juror 4]?

    . . . .

[SMITH DEFENSE COUNSEL]: Hi, [Juror 4].

JUROR NO. FOUR: Hi, how are you?

[SMITH DEFENSE COUNSEL]: Fine. Thank you.
Are you concerned at all that if the jury
comes back with a certain verdict, that
there's going to be some bad consequences
for you?

JUROR NO. FOUR: Well, that's it, that's what
I was thinking of.

[SMITH DEFENSE COUNSEL]:    So, you're worried
that if --

JUROR NO. FOUR: I was thinking along that
line, when I saw that this morning.

[SMITH DEFENSE COUNSEL]: And what are you
thinking now, the same way or different?

JUROR NO. FOUR: Well, no, I had it out of my
mind.  I hope it's okay when I go home and
when I go out in the morning.     It's not a
place where anybody hangs out. It's nothing
like that.   It's a park.   People go in and
walk around and jog, and it was kind of
early. It was 7 o'clock this morning.

[SMITH DEFENSE COUNSEL]: Okay.

JUROR NO. FOUR: So I thought I would mention
it, and it would be a little off my chest.
I was just thinking, well, if that does
happen or that could happen, if they would
bother you or somebody would bother you.




                     28                            A-0211-12T1
THE COURT: But what would happen to you in
your   thoughts,  would   that  affect   your
decision making, how you might decide this
case?   Would you be more inclined to vote
one way or the other as a result of that?

JUROR NO. FOUR: No, because I really think
I would vote according to the evidence. No,
I tried to be honest.

THE COURT:     Yes, but you're also --

JUROR NO. FOUR: I didn't fall back on that.

THE COURT: Counsel,          do   [you]   have   any
further follow up?

[PROSECUTOR]:    No, Judge.

THE COURT: And you say you spoke to [Juror
12]?

JUROR NO. FOUR: And [Juror 5].

     . . . .

JUROR NO. FOUR: [Juror 5] . . . works right
next to where I live, and she knows the
park, and she said it's not a place where
anybody hangs out like that.

THE COURT: [Juror 4], I'm going to ask you
to return back to the jury room.     Don't
speak to anybody else about what we spoke
about right here.

JUROR NO. FOUR:     Oaky, sure.     Thank you very
much, Judge.

     . . . .

(Juror No. Four excused from chambers.)

[SMITH   DEFENSE COUNSEL]: Where should I
start?   Now we have to talk to those people.




                        29                             A-0211-12T1
THE COURT: Yes.

    . . . .

PROSECUTOR: Well, Judge, I think        any time
someone sits around and hears           about a
carjacking, you then become more        aware of
the way of the world.      You can      watch an
episode of Criminal Minds and go         out the
next day and think like that.

THE COURT: Counsel, I talk to jurors after
[every] trial about customer service issues,
and something that is repeatedly asked of me
is whether there's going to be retribution,
one way or the other, depending on which
side they rule.   This is something that is
intrinsically   in    every   juror's   mind
potentially.   So, I don't have any great
concerns about this.    Are you asking that
[Juror 4] be excused?

[SMITH DEFENSE COUNSEL]:   I'm not sure.   I
mean she seems like a little bit shaken
about it. So, I know she's saying it's not
affecting her deliberation, but she just
seems troubled by it. But I mean, you know,
based on -- I mean I'm thinking about the
comments that you and [the Prosecutor] made,
and I don't know what [Brown's Counsel]
thinks, but if everyone is satisfied that
she's comfortable.

THE COURT: I think she said she could decide
the case based upon the evidence.    But she
does express, you know, her safety is a
matter of concern to her, but there's
nothing that she really connects with this
case.

[BROWN DEFENSE COUNSEL]:    .   .   .   I'm    not
asking to remove her.

THE COURT: But we   will   continue     the   voir
dire. All right.




                     30                              A-0211-12T1
[BROWN DEFENSE COUNSEL]: Yeah.

(Juror   No.    Three   enters   the   [c]ourt's
chambers)

     . . . .

THE COURT: [Addressing Juror 3] did you have
a conversation today with [Juror 4]?

JUROR NO. THREE:    The older lady?

THE COURT: Yeah.

JUROR NO. THREE: About what she saw?       Yes,
yes, we talked about it.

THE COURT: And she told you what she saw,
that she saw two Black men outside her home
this morning?

JUROR NO. THREE: Actually, the conversation
wasn't directly with me.   She was talking
with [Juror 12], another juror, but I was
right next to them.

THE COURT:   And would what she said affect
you in any way in your continuing to
deliberate in this matter?

JUROR NO. THREE: No.

THE COURT:     Counsel have any follow up with
[Juror 3]?

[SMITH DEFENSE COUNSEL]: No, Judge.

[BROWN DEFENSE COUNSEL]: No.

THE COURT: Is she oaky though?     I worry
about her. She's okay? Did she do anything
else than express what she saw that would
cause you concern for her      ability to
continue?




                        31                         A-0211-12T1
JUROR NO. THREE: She was very concerned, and
then when we walked, I was standing behind
her, and I told her not to worry about it, I
sincerely don't think she needed to be
worried that it has anything to do with this
case.   I think she needed to be assured.
She said, are you sure, are you sure.      I
said I'm pretty sure.

THE COURT:    Thank you [Juror 3].

(Juror No.     Three   excused   from   chambers.
Juror   No.     Five   enters    the    [c]ourt's
Chambers.)

THE COURT:    [Addressing Juror 5] were you
present at lunch when [Juror 4], Juror
Number 4, was having a conversation with
another one of your fellow jurors?

JUROR NO. FIVE: Yes.

THE COURT:   And she indicated that she had
seen something this morning.

JUROR NO. FIVE: She was talking to me.

THE COURT: She was talking to you.

JUROR NO. FIVE: And I said, let the officer
know about it.   What she said is that she
saw two black young men in the park where
she lives, at around where she lives.     I
know the area because I work near where she
lives.

THE COURT:    You work nearby?

JUROR NO. FIVE: Nearby.    The area is just
for   seniors,  and   it   has  like   three
complexes, and in the middle is like a park,
and on the other side is where the YMCA is
at.   It sounded a little strange perhaps.
This area mostly is Italian and White
people.   There really are no Black people
around there.   So, she was concerned about



                       32                           A-0211-12T1
it, and I advised her to let the police
officer know about this. She was kind of
nervous.

THE COURT: And what she expressed to you,
would that affect you in continuing your
deliberations?

JUROR NO. FIVE: No, not at all.

THE COURT:   Not at all.     Counsel have any
questions of [Juror 5]?

[PROSECUTOR]: No, Judge.

[BROWN DEFENSE COUNSEL]: No.

THE COURT: Thank you, [Juror 5], I'm going
to ask you . . . to go back to the jury room
and don't talk to your fellow jurors about
what we talked about.

JUROR NO. FIVE: Okay.

    . . . .

[SMITH DEFENSE COUNSEL]: Judge, can we ask
this person if they think anybody else heard
it, if they have knowledge?

THE COURT: Yeah.

(Juror   No.   12   enters     the   [c]ourt's
Chambers.)

THE COURT: Come on in. Hi . . . Please sit.
[Addressing Juror 12], [Juror 4] spoke to
you on lunch hour about something she saw
this morning?

JUROR NO. TWELVE: Yes.

THE COURT: And she expressed to you some
concern about what she saw. What she told
you, would that affect your ability to
continue on this jury?



                        33                       A-0211-12T1
            JUROR NO. TWELVE: No.

            THE COURT:   Did she appear to be reassured
            when she mentioned it to the sheriff's
            officer about what she saw?         Has she
            expressed - - or is she in any way acting as
            if you don't think she's going to be able to
            continue in her deliberations?

            JUROR NO. TWELVE: I think she'll be able to
            continue.   I just think she was shook up a
            little bit about it.

            THE COURT: Was there anyone else present or
            around? She told us that she was speaking -
            - I think she said to you, and then [Juror
            5] told her, advised her and that [Juror 3]
            was nearby.

            JUROR NO. TWELVE: Yeah, that was it.

            THE COURT: Was there anybody else nearby
            that could have heard it? Counsel have any
            follow up with [Juror 12]?

            [BROWN DEFENSE COUNSEL]: No.

            [SMITH DEFENSE COUNSEL]: No.

            [PROSECUTOR]: No.

            [(Emphasis added).]

    The trial judge excused Juror 12 and gave her the same

admonition he had given the other three jurors, to refrain from

discussing what had transpired with the remaining members of the

jury.     The record indicates there was a request by the jury for

a read back of some testimony.            After this concluded, Brown's

counsel    addressed   the   judge   in   open   court,   but   outside   the

presence of the jury, and moved for a mistrial.            Brown's counsel



                                     34                             A-0211-12T1
indicated his motion was based on Juror 4's comments, together

with   the   comments    made   by   Juror   5.   Alternatively,   Brown's

counsel asked the court to remove Jurors 4 and 5, and replace

them with the two alternates.           Smith's counsel joined in both

motions.     Smith's counsel made the following argument in support

of her application:

             I'm concerned - - and I'm also speaking on
             my client's behalf after speaking to him.
             I'm concerned about [Juror 5], some of her
             comments, because it seems like she thought
             it was very strange as well, and she's not
             used to seeing Black people in that area.
             And she's the one, in fact, that told [Juror
             4] to say something to the officers.     So,
             I'm   just  concerned   about  how,   either
             consciously or subconsciously, that would
             affect them. So, I would ask that they both
             be removed.

       The prosecutor opposed defendants' applications for either

a mistrial or for the removal of Jurors 4 and 5.          The prosecutor

maintained     that     Juror   4    specifically   declared   that      the

experience she had had earlier that same day did not affect her

ability to remain impartial.          The prosecutor noted that in "the

realities of life and of jury duty . . . you hear facts that,

for many people in this box, are not part and parcel of their

everyday life."

       The trial judge stated, "Prosecutor, I concur with you."

The judge again stated how it is his practice to speak to jurors

at the end of trials to discuss



                                      35                           A-0211-12T1
customer service issues, things that we
could do better in order to make their jobs
easier.

    . . . .

But the thing that always rings true is that
someone always asks about juror safety and
whether there's potential retaliation for
verdicts, either by the State or by the
defense, based upon their findings, and we
always try to reassure them.    I know that
one of the issues with the jury selection
method, I always try to tell my jurors to be
general in talking about - - for instance,
we don't . . . want to know what specific
job they work for, but we're looking for
general, generic information. We don't want
to know where they live.    We want to know
who lives with them.

So, I think that juror safety, juror
anonymity to one extent is one of the
growing concerns in the country in terms of
jury selection.

[Juror 4] expressed that she saw two people
outside of her home today.        She didn't
connect it in any way whatsoever with this
case, except that the two individuals she
saw were African-American and that the two
defendants on trial are African-American.
She made the connection in her mind, and she
said she was somewhat concerned about it.
[Juror 5] indicates that she works nearby
and that she somewhat fed into that concern
by saying it might be unusual for there to
be    two    African-Americans     in   that
neighborhood, but speak to the sheriff's
officer if you have any concerns.

Both individuals indicated that what was
said between them, what was observed by
[Juror 4] would have no part, would play no
role in their continued deliberations.




                     36                        A-0211-12T1
         [(Emphasis added).]

    Brown's counsel emphasized that the facts showed Juror 4

saw a possible nefarious connection between the two African-

American men in a Caucasian neighborhood and her service as a

juror in a case involving two African-American defendants.    The

judge rejected counsel's argument, stating: "We cannot deal at a

jury selection level with subconscious behavior.    We tell the

jury that we understand that we expect to some extent people

have developed certain prejudices, some fixed ways of thinking .

. . The fact that they might does not exclude them from service

as jurors."

    At the conclusion of the read back of certain testimony,

the judge addressed the jury in open court:

         I want to make one comment, and I've already
         ruled on this, but in terms of creating the
         record, there's been an expression that
         [Juror 4] -- and also [Juror 5] to a certain
         extent    --     expressed    some    racial
         consciousness and potential racism by their
         comments.

         However, what they both said was that the
         circumstances were unusual, that the area in
         which they were, it would be unusual for
         someone who was Black to be in that area. I
         can't say -- I can't say that myself.      I
         don't know whether any counsel can say it,
         but these individuals said that that was
         unusual.    And [Juror 4] expressed some
         initial concerns with it.     I don't think
         that that's even an expression of racism.
         So, your application is denied.




                               37                       A-0211-12T1
              [(Emphasis added).]

       Approximately one hour later, the jury returned its verdict

findings defendants guilty on most of the charges reflected in

the verdict sheet.

                                                  V

       Our    Supreme       Court        has       emphatically         stated        that      "[a]

defendant's right to be tried before an impartial jury is one of

the most basic guarantees of a fair trial."                                State v. Loftin,

191 N.J. 172, 187 (2007); State v. Tindell, 417 N.J. Super. 530,

562-563 (App. Div. 2011).                      The Sixth Amendment of the United

States     Constitution        and       Article         I,    paragraph      10    of    the    New

Jersey Constitution guarantee criminal defendants "the right to

. . . trial by an impartial jury."                            U.S. Const. amends VI, XIV;

N.J.   Const.     art.        I,    ¶    10.          "That     constitutional           privilege

includes the right to have the jury decide the case based solely

on   the     evidence    presented           at    trial,       free    from    the      taint   of

outside influences and extraneous matters."                             State v. R.D., 169

N.J. 551, 557 (2001).

       The    Court     has    stressed           that    jurors       must    be   "as      nearly

impartial      'as    the     lot       of   humanity          will    admit.'"          State    v.

Singletary, 80 N.J. 55, 62 (1979) (quoting State v. Jackson, 43

N.J. 148, 158 (1964), cert. denied sub nom. Ravenell v. New

Jersey, 379 U.S. 982, 85 S. Ct. 690, 13 L. Ed. 2d 572 (1965)).




                                                  38                                      A-0211-12T1
"A trial is poisoned at its inception if the jurors deciding the

case   cannot      review    the    evidence      dispassionately,          through   the

light of reason."            State v. Fortin, 178 N.J. 540, 575 (2004).

For    this    reason,      "all    doubts      about   a   juror's     integrity       or

ability to be fair should be resolved in favor of removing the

juror from the panel."             Loftin, supra, 191 N.J. at 187.

       A   trial     court    has    discretion     to      remove    and     replace    a

deliberating juror "because of [the juror's] illness or other

inability to continue."               R. 1:8-2(d)(1).           Although seemingly

vague and broad, the "inability to continue" standard must be

narrowly construed and sparingly applied.                    State v. Jenkins, 182

N.J., 112, 124 (2004); State v. Hightower, 146 N.J. 239, 254

(1996).       "Because juror substitution poses a clear potential for

prejudicing the integrity of the jury's deliberative process, it

should be invoked only as a last resort to avoid the deplorable

waste of time, effort, money, and judicial resources inherent in

a mistrial."         Hightower, supra, 146 N.J. at 254 (citing State v.

Lipsky, 164 N.J. Super. 39, 43 (App. Div. 1978)).

       The reason behind a juror's inability to continue must be

"personal      and    unrelated      to   the    juror's     interaction       with   the

other jury members."               State v. Valenzuela, 136 N.J. 458, 473

(1994).

              Thus a juror cannot be replaced                        by an
              alternate during   deliberations                       merely



                                           39                                   A-0211-12T1
            because his position is at odds with the
            other jurors, or because a party perceives
            or receives information that the juror may
            be unfavorable to that party, or because the
            juror is unable to come to a decision by the
            time all the other jurors have reached
            theirs.

            [Pressler & Verniero, Current N.J. Court
            Rules, comment 4.3.2 on R. 1:8-2 (2014)
            (citations omitted).]

    Courts        have       sanctioned         the     removal    and    replacement      of

deliberating jurors under the "inability to continue" standard

in a variety of different circumstances.                           See, e.g., State v.

Williams,        171       N.J.    151,        167    (2002)   (juror     complained       of

financial hardship); State v. Miller, 76 N.J. 392, 401-02 (1978)

(juror was too nervous and could not render a fair verdict);

State v. Trent, 157 N.J. Super. 231, 239-40 (App. Div. 1978)

(juror under emotional distress because defendant reminded her

of her son), rev'd on other grounds, 79 N.J. 251 (1979).

    Although           a   deliberating          juror's    bias   or    prejudice     falls

within    the     "inability        to     continue"       standard,      the   court,     in

opting for substitution rather than a mistrial, must ensure, by

appropriate voir dire, that the other jurors were not tainted by

the removed juror.                 Pressler & Verniero, Current N.J. Court

Rules,    comment          4.3.2   on     R.    1:8-2    (2014).        "When   a   jury   is

exposed     to     extraneous           information        after   deliberations        have

begun, a mistral will almost always be required."                               Hightower,




                                                 40                                 A-0211-12T1
supra, 146 N.J. at 255, 264 (court erred in removing a juror and

not granting a mistrial where the juror informed the others that

the victim had children).             See also State v. Adams, 320 N.J.

Super. 360, 365-69 (App. Div.) (court erred in removing a juror

and not granting a mistrial where the juror told the others that

police often beat accused criminals), certif. denied, 161 N.J.

333 (1999).

       The    decision   to   grant   a    new   trial   based   on    jury     taint

resides in the discretion of the trial court.                        But, if juror

misconduct or bias has a tendency to influence the jury, a new

trial should be granted without further inquiry as to its actual

effect.       R.D., supra, 169 N.J. at 558 (citing Hightower, supra,

146    N.J.    at   266-67;   Panko   v.   Flintkote     Co.,    7    N.J.   55,    61

(1951)).      "The test is not whether the irregular matter actually

influenced the result, but whether it had the capacity of doing

so."    Panko, supra, 7 N.J. at 61.

       "A new trial, however, is not necessary in every instance

where it appears an individual juror has been exposed to outside

influences."        R.D., supra, 169 N.J. at 559.         In deciding whether

to grant a new trial, a trial court must consider:

              the gravity of the extraneous information in
              relation to the case, the demeanor and
              credibility of the juror or jurors who were
              exposed to the extraneous information, and
              the overall impact of the matter on the
              fairness of the proceedings.     The inquiry



                                          41                                 A-0211-12T1
             about whether extraneous information had the
             capacity to influence the result of the jury
             requires an examination of whether there was
             at least an opportunity for the extraneous
             information to reach the remaining jurors
             when   that    extraneous   information   is
             knowledge unique to one juror who is excused
             mid-trial.

             [Ibid.]

      When     "it   becomes   apparent    that   a   juror   may     have     been

exposed   to    extraneous     information,   the     trial   court    must    act

swiftly to overcome any potential bias and to expose factors

impinging on the juror's impartiality."               Id. at 557-58 (citing

State v. Bey, 112 N.J. 45, 83-84 (1988)).

             The court is obliged to interrogate the
             juror, 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.

             [Id. at 558 (citing Pressler, Current N.J.
             Court   Rules, comment  2   on  R.  1:16-1
             (2000)).]

      An appellate court reviews the trial court's jury-related

decisions under the abuse of discretion standard.                   Id. at 559.

This standard respects the trial court's unique perspective and

the   traditional      deference    we     accord     to   trial      courts    in

"exercising control over matters pertaining to the jury."                       Id.

at 559-60.       However, "an appellate court is not bound by a



                                      42                                 A-0211-12T1
determination when the 'particular circumstances present such a

strong likelihood of prejudice that, as a matter of law,' the

juror should have been removed."          Loftin, supra, 191 N.J. at 192

(quoting State v. Biegenwald, 106 N.J. 13, 91 (1987)).

      Here, the trial judge abused his discretion in failing to

remove Juror 4.       The record is replete with unambiguous evidence

revealing Juror 4's racial bias.          In her own words, she revealed

how   she   immediately    construed      the   presence   of   two   African

American men in her all white neighborhood as a menacing sign of

possible    retaliation   by   defendants,      merely   because   they    were

also African American men.          Even more disturbing, however, is

the trial judge's reaction to Juror 4's revelations.               The judge

was not only oblivious to the juror's unmistakable racial bias,

but he actually endorsed the juror's misguided apprehensions.

The judge made his point of view on the subject of racial bias

and prejudice clear when he denied Brown's defense counsel's

motion to remove Jurors 4 and 5.            "[W]e expect to some extent

people have developed certain prejudices, some fixed ways of

thinking."

      The   judge's    impromptu,   sua   sponte   "instructions"     to    the

jury, made soon after the judge had finished interviewing the

four jurors in his chambers, dispels any lingering doubt an




                                     43                               A-0211-12T1
objective viewer could have about the judge's willingness to

accept racial bias in a juror as an unavoidable reality of life.

              I want to make one comment, and I've already
              ruled on this, but in terms of creating the
              record, there's been an expression by [Juror
              4] -- and also [Juror 5] to a certain extent
              - - expressed some racial consciousness and
              potential racism by their comments.

              However, what they both said was that the
              circumstances were unusual, that the area in
              which they were, it would be unusual for
              someone who was Black to be in that area. I
              can't say -- I can't say that myself.      I
              don't know whether any counsel can say it,
              but these individuals said that that was
              unusual.    And [Juror 4] expressed some
              initial concerns with it.     I don't think
              that that's even an expression of racism.

              [(Emphasis added).]

    These remarks coming from a sitting judge in a criminal

trial   are    plainly      inappropriate      under    any    circumstances,          but

especially     when    they    are     uttered    in    a    trial    involving        two

African American defendants.              A juror's expression of "racial

consciousness      and       potential       racism"        must     be       immediately

repudiated,     and    the     juror    must     be    removed     from        the   jury.

Thereafter,      the        trial    judge     must      conduct          a    thorough,

comprehensive,        and    probing     investigation        to     determine        what

influence the juror's noxious sentiments had on other jurors.

    Here, the judge's voir dire of Jurors 3, 5, and 12 was

completely inadequate and fell far short of what was required




                                          44                                     A-0211-12T1
under the circumstances.           The judge did not ask any open ended

questions.     He began each of the interviews with these jurors

with a variation of the statement, "Juror 4 expressed to you

some concern about what she saw."                   The judge did not ask the

jurors to recite what Juror 4 had told them.                           His "examination"

of these jurors seemed designed to confirm his predisposition to

find Juror 4's irrational, racist fears after seeing two African

American   men   in    her   all    white        neighborhood           as   a       completely

justified and understandable reaction on her part.                                   The judge

accepted as sound and prudent Juror 5's advice to Juror 4 to

report to a Sheriff's Officer that she had seen two African

American   men   that     morning      in    the    park       located         outside        her

residence.

    It is clear the judge found Juror 4's fears in this respect

understandable.        Indeed, the judge noted several times on the

record his practice of speaking to jurors at the conclusion of

trials   and   conduct    his    own    version          of   a   "customer            service"

interview.       The     judge     highlighted       that         in     the         course    of

conducting these post-trial interviews, "juror safety and                                   . . .

[the]    potential     retaliation          for    verdicts"           was       a    key     and

consistent     concern    expressed         by    most    of      the    jurors         he    has

interviewed.     This statement reveals, with indisputable clarity,

the judge's profound misapprehension of the significance of the




                                        45                                             A-0211-12T1
sentiments expressed by Juror 4 and 5.                 The judge considered the

jurors' expressions of racial bias as legitimate fears to be

addressed systemically by providing more security and ensuring

the     anonymity     of   the    jurors.          These   views     are   utterly

irreconcilable with one of the core principles of this State's

judiciary, the delivery of equal justice under law to all of our

citizens.

      We have taken the time and effort to describe the record in

these    two   consolidated       appeals     in   great   detail,    because     we

wanted to reveal the profound, highly prejudicial errors that

infected this trial, and by so doing, provide guidance to our

colleagues at the trial level on how to address these highly

contentious and profound issues when they arise.                   The essence of

racial profiling is to associate criminality or wrongdoing as an

aspect    of   a    person's     race   or    ethnic    background.        We   have

unequivocally condemned this specious and hateful practice when

it was used by the law enforcement community in this State to

target minority motorists as they travelled our highways.                         We

must adopt the same policy of zero tolerance when a version of

such an odious concept contaminates, to any degree, the jury's

deliberative process.          Racial bias is repugnant to any notion of

fairness or impartiality; it is the antithesis of justice under

the law.




                                         46                                A-0211-12T1
    Under these circumstances, we are compelled to reverse and

vacate the convictions of both defendants Brown and Smith and

remand   the   matter   for   retrial.   Because   this   outcome   is

dispositive of this appeal, we do not address the remaining

arguments raised by both defendants.

    Reversed and remanded.      We do not retain jurisdiction.




                                   47                        A-0211-12T1
_______________________________

       ASHRAFI, J.A.D., concurring in the result.

       I concur in the court's judgment.       During deliberations, a

juror expressed to other jurors and the judge an unjustified

fear    of   retaliation   by   defendants     because     of     an   event

unconnected to the trial and an invidious racial stereotype she

harbored.     The   impartiality   of   the   jury   was   thus    tainted.

Defendants' motion for a mistrial should have been granted.
