                                        SYLLABUS

This syllabus is not part of the Court’s opinion. It has been prepared by the Office of the
Clerk for the convenience of the reader. It has been neither reviewed nor approved by the
Court. In the interest of brevity, portions of an opinion may not have been summarized.

                     State v. Antwan J. Horton (A-26-19) (082698)

Argued April 28, 2020 -- Decided June 10, 2020 -- Revised June 12, 2020

PER CURIAM

       In this appeal, the Court considers whether a trial court may replace a juror after
the jury announced that they had reached a partial verdict.

        The trial court excused and replaced a juror who had a preplanned vacation and
who had been part of deliberations after the jury announced that they had reached a
partial verdict. The judge did not have the jury return a partial verdict. Instead, the court
excused the juror and reconstituted the jury with a replacement juror. The court denied
defendant’s motion for a mistrial and defendant’s request to voir dire the jury to
determine its ability to begin anew with the replacement juror. The jury reached a
unanimous verdict three days later. The Appellate Division affirmed, finding that the
trial court did not abuse its discretion.

HELD: Under settled law, juror substitution is impermissible if the jury has reached a
partial verdict. The proper course is for the trial court to take the partial verdict and
declare a mistrial on the open counts.

1. In a case like this, courts cannot know whether the jury will “start anew” with the
entry of a substitute juror and discard their views simply because there is a new juror
amongst them. Nor can courts know if the new juror will exercise independence or
simply go along with the opinions of the existing jurors. Courts cannot know or
speculate whether the replacement juror was a full participant in the mutual exchange of
ideas. The safest and fairest course is to take a partial verdict, declare a mistrial, and
constitute a new jury to hear the remaining counts. (p. 4)

       REVERSED and REMANDED to the trial court.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, PATTERSON,
FERNANDEZ-VINA, SOLOMON, and TIMPONE join in this opinion.




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           SUPREME COURT OF NEW JERSEY
                 A-26 September Term 2019
                           082698


                    State of New Jersey,

                    Plaintiff-Respondent,

                              v.

                 Antwan J. Horton, a/k/a
            Anatwan Hortan, Antione Jameson,
             Antione Jenkins, Antoine Smith,
            Antowne Horton, Antwan Jackson,
              Raseen Wallace, Rashad Smith,
           Rasheen Wallace, and Rayquan Smith,

                    Defendant-Appellant.

           On certification to the Superior Court,
                     Appellate Division.

   Argued                Decided                   Revised
April 28, 2020         June 10, 2020            June 12, 2020


   Whitney F. Flanagan, Assistant Deputy Public Defender,
   argued the cause for appellant (Joseph E. Krakora, Public
   Defender, attorney; Whitney F. Flanagan, and David A.
   Gies, Designated Counsel, of counsel and on the briefs).

   Michele C. Buckley, Special Deputy Attorney
   General/Acting Assistant Prosecutor, argued the cause for
   respondent (Lyndsay V. Ruotolo, Acting Union County
   Prosecutor, attorney; Michele C. Buckley, of counsel and
   on the briefs).



                              1
                                   PER CURIAM


         This appeal comes before the Court to consider the actions of the trial

court in excusing and replacing a juror who had a preplanned vacation and

who had been part of deliberations. Just before the substitution, all the jurors,

including the juror with the preplanned vacation, announced that they had

reached a partial verdict. The judge did not have the jury return a partial

verdict. Instead, the court excused the juror and reconstituted the jury with a

replacement juror.

         Defendant argued that the deliberations had proceeded too far to

reconstitute the jury, and on that basis moved for a mistrial. Nevertheless, the

trial judge denied that motion. Defendant requested that the judge voir dire the

jury to determine its ability to begin anew with the replacement juror. Instead,

the judge instructed the reconstituted jury to discard the partial verdict and

begin deliberations anew. The jury reached a unanimous verdict three days

later.

         Defendant appealed, arguing that the juror substitution after the jury had

reached a partial verdict denied him a fair trial.

         The Appellate Division affirmed defendant’s conviction, speculating that

the substituted juror was a “full participant[] in the mutual exchange of ideas.”



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The Appellate Division noted that during deliberations, the reconstituted jury

requested transcripts, asked for testimony to be played back, and asked

additional questions before returning a verdict three days later. Relying on the

totality of the circumstances, the court found that the trial court did not abuse

its discretion by substituting a juror.

      We disagree. We have rich and fulsome jurisprudence on the issue of

juror substitution in the face of a jury having reached a partial verdict. Quite

simply, substitution is impermissible. The proper course is for the trial court

to take the partial verdict and declare a mistrial on the open counts.

      “[W]hen the circumstances suggest a strong inference that the jury has

affirmatively reached a determination on one or more factual or legal issues

the trial court should not substitute an alternate for an excused juror.” State v.

Ross, 218 N.J. 130, 151 (2014). We have “h[e]ld that substitution of a juror

after the return of partial verdicts for the purpose of continuing deliberations in

order to reach final verdicts on remaining counts [constitutes] plain error.”

State v. Corsaro, 107 N.J. 339, 354 (1987). “[I]f a partial verdict has been

rendered, or the circumstances otherwise suggest that jurors have decided one

or more issues in the case, including guilt or innocence, the trial court should

not authorize a juror substitution, but should declare a mistrial.” Ross, 218

N.J. at 151; accord State v. Jenkins, 182 N.J. 112, 133 (2004) (noting that the



                                          3
reconstituted jury returned a verdict in twenty-three minutes, which signaled

that minds were closed when the alternate joined the deliberations, and

observing that, “[i]n this posture, judicial economy had to bow to defendant’s

fair trial rights and a mistrial should have been declared”); see also Corsaro,

107 N.J. at 342, 344, 354 (holding that “the trial court should either have

declared a recess until” an “apparently intoxicated juror” could resume

deliberations “or declared a mistrial on the open charges”).

      That settled body of law directly applies here but was not followed at the

trial or appellate level. In a case like this, where defendant was facing charges

of murder, attempted murder, and weapons possession offenses, we cannot

know whether the jury will “start anew” with the entry of a substitute juror and

discard their views simply because there is a new juror amongst them. Nor can

we know if the new juror will exercise independence or simply go along with

the opinions of the existing jurors. We cannot know or speculate whether the

replacement juror was a “full participant[] in the mutual exchange of ideas.”

The safest and fairest course is to take a partial verdict, declare a mistrial, and

constitute a new jury to hear the remaining counts.

      Therefore, we reverse the judgment of the Appellate Division and

remand to the trial court for a new trial on the two lesser-included offenses of

which defendant was convicted: second-degree reckless manslaughter and



                                         4
third-degree aggravated assault for attempting to cause significant bodily

injury to another.



      CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN,
PATTERSON, FERNANDEZ-VINA, SOLOMON, and TIMPONE join in this
opinion.




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