State v. Trent

Decision Date10 March 1978
PartiesSTATE of New Jersey, Plaintiff-Respondent, v. Curtis E. TRENT, Defendant-Appellant.
CourtNew Jersey Superior Court — Appellate Division

Alan Silber, East Orange, designated counsel, for defendant-appellant (Stanley C. Van Ness, Public Defender, attorney).

Kenneth P. Ply, Sp. Deputy Atty. Gen., for plaintiff-respondent (John J. Degnan, Atty. Gen., William F. Hyland, former Atty. Gen., and Leonard D. Ronco, Acting Essex County Prosecutor, of counsel).

Before Judges MICHELS, PRESSLER and BILDER.

The opinion of the court was delivered by

PRESSLER, J. A. D.

Defendant was convicted by a jury of nine separate offenses arising out of his participation with two confederates in the armed robbery of a bank during which a bank guard and one of the confederates shot and killed each other. Following the return of the verdict defendant was sentenced to consecutive life terms for the two felony murders and to concurrent prison terms for the offenses of conspiracy to commit robbery of a bank, possession of revolvers without permit and receiving stolen revolvers. The remaining four convictions were merged with the two murder convictions.

Defendant's attorney predicates this appeal on three assertions of error: first, that the conviction for the murder of the confederate must be set aside as not constituting felony murder pursuant to N.J.S.A. 2A:113-1; second, that the conviction for possession of firearms without a permit merged either with the conviction for receiving firearms or with the merged armed robbery conviction; and third, that the trial judge mistakenly exercised his discretion in discharging a juror after deliberations had begun and substituting an alternate juror for the discharged juror. In addition, defendant has filed a pro se brief which argues that he was improperly denied his right to be present at every critical stage of the trial by reason of his absence from the in camera hearing which resulted in the juror's excuse.

Defendant is correct in his first contention and the State so concedes. The pertinent circumstances here are indistinguishable from those which were before the Supreme Court in State v. Canola, 73 N.J. 206, 374 A.2d 20 (1977), and State v. Alston, 73 N.J. 228, 374 A.2d 31 (1977). Accordingly, defendant is entitled to an acquittal on the second count of the indictment and a vacation of the sentence imposed on the conviction thereof.

We find no merit in the contention that the conviction for possession of firearms merged either with the conviction of receiving stolen property or the conviction of armed robbery. State v. Best, 70 N.J. 56, 66-67, 356 A.2d 385 (1976), expressly indicates the nonmerger of the possession charge with the armed robbery charge where firearms are involved. We are, moreover, satisfied that the elements of the crime of possession of a firearm without a permit (N.J.S.A. 2A 151-41(a)) and the elements of the crime of receiving stolen property (N.J.S.A. 2A:139-1) are distinct and hence that proof of one of the crimes is neither coextensive with nor dependent upon proof of the other. See State v. Best, supra, 70 N.J. at 63, 356 A.2d 385. And see State v. McGee, 131 N.J.Super. 292, 299, 329 A.2d 581 (App.Div.1974).

The third of defendant's contentions relating to the discharging of a juror during deliberations raises a novel issue since there has been no previous judicial construction of the 1972 amendment of R. 1:8-2(d), pursuant to which the trial court exercised its discretion. That amendment provides that

If the alternate jurors are not discharged and if at any time after submission of the case to a jury, a juror dies or a juror is discharged by the court because he is ill or otherwise unable to continue, the court may direct the clerk to draw the name of an alternate juror to take the place of the juror who is deceased or discharged.

The problem with which the trial judge was here confronted developed when, some six hours after deliberations had begun, one of the jurors sent the judge a note stating that "I am getting sick." The judge called both counsel into chambers and, on the record, advised them of her intention to question the juror in their presence in order to determine the nature of her difficulty and to instruct the jury to suspend their deliberations in the meantime. Both counsel agreeing to this procedure, the juror was brought into chambers and the following colloquy took place:

THE COURT: First of all, I just want to tell you that I received your note. Please don't in any way tell me anything that is going on in the jury room relating to deliberations.

What is wrong?

THE JUROR: I just feel nervous. I have a headache and everything. I'm just I don't know.

THE COURT: You are just nervous and have a headache?

THE JUROR: I have a headache and feel like I want to spit up, just too emotional.

THE COURT: All right. You feel if you took a break or something you'll feel better?

THE JUROR: When I close my eyes I guess I'm just too easily get emotional, you know, when children is involved because I have children myself and it just hard for me to make a decision. I'm just all upset. I tried, you know, to go through with it but just because every time I see him sitting there I can picture my son sitting there. He's about 17 and it is just too much. I can't take no more.

Subsequent questioning of the juror elicited from her the response that she might feel better in the morning after she had gotten some rest. The trial judge's observations and conclusions as to the juror's condition were couched in such statements as "She certainly is upset and she is obviously disturbed," "She is obviously emotionally and physically disturbed," and finally "She really did indicate that she really has a bias and she really can't render a fair and just decision * * * she sees the defendant as her son and she can't make a decision."

Responding to these circumstances, defense counsel urged that since it was already five o'clock in the afternoon, the appropriate thing to do would be to disperse the jury for the evening and then determine the following morning before deliberations resumed whether or not the juror could reasonably continue. The prosecutor urged that the juror's evident distressed condition required her immediate discharge; that the substitution of an alternate should be made, and that the jury thus reconstituted should forthwith recommence deliberations until the agreed-upon hour of 7 or 8 p. m. The trial court opted for the prosecutor's suggestion, stating these reasons for so doing:

I've thought about this matter and I've just decided that based upon my observations of juror number 13 she is physically and emotionally disturbed and based upon what she has told us here in chambers, that she identifies the defendant as her son and has indicated that she is so emotionally disturbed that she can't render an opinion, based upon my observation of her and what she has said, I don't think that she can properly and adequately carry out her duties as a juror and even though she has indicated she might feel a little better if I excuse the jury and bring her back overnight, I really don't think taking all the factors into consideration she can change her opinion. So, therefore, I hereby find that there is good cause for excusing her and I'm going to excuse her.

The first chosen alternate claiming to be ill also, the deliberations resumed with the second chosen alternate at about 5:30 p. m. Sometime before 8 p. m., the verdict of guilty on all counts was returned.

While defendant makes a passing footnote query as to the constitutionality of the 1972 amendment of R. 1:8-2(d), it is not the validity of the rule which he here challenges 1 but rather the manner in which the trial court exercised its discretion thereunder. His argument is, in essence, that there was insufficient cause shown for the discharge of a juror potentially favorable to him and that the effect of the discharge was to achieve unanimity in a guilty verdict which otherwise might not have been forthcoming.

We note at the outset that the policy debate which preceded the adoption of the amendment was settled by our Supreme Court's evident decision that its practical advantages outweighed its theoretical and speculative disadvantages. The arguments both in support of and in opposition to a mid-deliberation substitution practice were fully stated in the Report of the Supreme Court Committee on Criminal Procedure and in that of its Special Subcommittee on Jury Deliberations, 95 N.J.L.J. Index Page 341, 354-356 (1972), and were, moreover, considered at the 1972 Judicial Conference 2. Although there was then some concern over a conjectured effect of the substitution on "jury dynamics and the relative effectiveness or ineffectiveness of the substituted juror" and a recognition of the possibility that "the availability of an alternate juror might lead a jury to encourage an intransigent member to be replaced" (95 N.J.L.J. supra, at Index Page 356), nevertheless it was the view of the Committee, evidently concurred in by the Supreme Court by way of its exercise of its rule-making power, that the technique of substitution would provide a significant and constitutionally unobjectionable mechanism for the avoidance of mistrials and was, in effect, nothing more than a logical extension of the "insurance" effected by having alternate jurors empaneled for the trial itself.

The economy motivation of the rule is certainly demonstrated here. This trial was in its tenth day when the jury commenced its deliberations. The question then...

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23 cases
  • State v. Miller
    • United States
    • New Jersey Supreme Court
    • 24 Mayo 1978
    ...in the circumstances presented herein we find that utilization of the rule provision was not improper. See State v. Trent, 157 N.J.Super. 231, 384 A.2d 888 (App.Div.1978). No rule is immutable. The court is always receptive to improvements in our procedures. See In re National Broadcasting ......
  • State v. Anderson
    • United States
    • New Jersey Superior Court — Appellate Division
    • 9 Enero 1985
    ...should not merge with first degree armed robbery. See State v. Best, supra, 70 N.J. at 66-67, 356 A.2d 385; State v. Trent, 157 N.J.Super. 231, 234, 384 A.2d 888 (App.Div.1978), rev'd on other grounds 79 N.J. 251, 398 A.2d 1271 (1979); State v. Pratts, 145 N.J.Super. 79, 94, 366 A.2d 1327 (......
  • State v. Hightower
    • United States
    • New Jersey Supreme Court
    • 8 Agosto 1996
    ...and substitution technique of the rule. Declaration of a mistrial would be the only available alternative. [State v. Trent, 157 N.J.Super. 231, 239, 384 A.2d 888 (App.Div.1978), rev'd on other grounds, 79 N.J. 251, 398 A.2d 1271 Although the death and illness standards are clear and narrow,......
  • State v. Zenquis
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    • 29 Octubre 1991
    ...that a defendant has a fundamental right to be present at every critical stage of a trial. See, e.g., State v. Trent, 157 N.J.Super. 231, 241, 384 A.2d 888 (App.Div.1978), rev'd on other grounds, 79 N.J. 251, 398 A.2d 1271 (1979); R. 3:16. Though confrontation means more than being allowed ......
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