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State v. Ross

Supreme Court of New Jersey

January 6, 2014, Argued; June 24, 2014, Decided

A-67 September Term 2012, 072042


 [*136]  [**742]   JUSTICE PATTERSON delivered the opinion of the Court.

During the trial of defendant Michael Ross II for two counts of first-degree murder, two weapons offenses and hindering apprehension, the jury twice interrupted its deliberations to communicate with the trial court. On the fifth day of deliberations, the jury advised the court that it was "unable [***9]  to reach a unanimous decision on any count" of defendant's indictment, and sought instruction from the court. The trial court directed the jury to resume deliberating, with a view to reaching an agreement, if such agreement could be achieved without impairing the judgment of individual jurors. The jury complied, but later that day communicated with the court to report that one of the jurors had become ill. After dismissing the jury for the day and speaking with the ailing juror the following morning, the trial court excused her from further service. Without objection from the State or defendant, the court substituted an alternate juror for the excused juror. The reconstituted jury, instructed to initiate new deliberations with the full participation of the substituted juror, deliberated for more than sixteen hours and convicted defendant of all charges. Defendant appealed, and an Appellate Division panel reversed, holding that the trial court's decision to substitute an alternate for the ailing juror constituted plain error.

We hold that in the circumstances of this case, the trial court properly addressed both of the issues raised by the jury in the course of its deliberations. The [***10]  trial court's instruction to the jury to continue deliberations, notwithstanding its initial report of a deadlock, conformed to this Court's decision in State v. Czachor, 82 N.J. 392, 404-06, 413 A.2d 593 (1980). Confronted with a  [*137]  report that a juror was unable to continue because she was ill, the trial court verified that the juror's inability to continue was prompted by her condition, rather than a dispute among the jurors. The trial court then substituted an alternate in accordance with Rule 1:8-2(d)(1) and properly instructed the reconstituted jury to commence new deliberations. In its response to both developments, the trial court preserved the confidentiality and integrity of the jury's deliberations and protected defendant's right to a fair trial.

Accordingly, we reverse the judgment of the Appellate Division, and remand to the  [**743]  Appellate Division for consideration of the remaining issues that the panel did not reach in light of its resolution of the jury substitution issue.

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218 N.J. 130 *; 93 A.3d 739 **; 2014 N.J. LEXIS 610 ***; 2014 WL 2978321


Subsequent History: Corrected July 3, 2014.

On remand at, Remanded by State v. Ross, 2016 N.J. Super. Unpub. LEXIS 527 (App.Div., Mar. 8, 2016)

Prior History:  [***1] On certification to the Superior Court, Appellate Division.

State v. Ross, 2012 N.J. Super. Unpub. LEXIS 2827 (App.Div., Dec. 28, 2012)


juror, deliberations, trial court, substitution, reconstituted, jury deliberations, excused, alternate, declaration, deadlock, impasse, anew, mistrial, illness, alternate juror, plain error, circumstances, trial judge, communications, Instructions, progressed, deliberative process, departure, replaced, partial verdict, questions, newly, views, bias, unanimous verdict

Criminal Law & Procedure, Reviewability, Preservation for Review, Exceptions to Failure to Object, Standards of Review, Plain Error, General Overview, Definition of Plain Error, Juries & Jurors, Jury Deliberations, Deadlocked Juries, Jury Instructions, Particular Instructions, Directing Further Deliberations, Trials, Motions for Mistrial, Judicial Discretion, Appeals, Alternates, Defendant's Rights, Right to Jury Trial, Right to Fair Trial, Constitutional Law, Fundamental Rights, Criminal Process, Right to Jury Trial, Privacy of Deliberations, Abuse of Discretion, Jury Questions to the Court, Verdicts, Partial Verdicts