State v. Morgan, A-119 September Term 2011; Supreme Court; opinion by Rabner, C.J.; decided August 8, 2013. On certification to the Appellate Division, 423 N.J. Super. 453 (2011). [Sat below: Judges Fuentes, Nugent and Kestin in the Appellate Division; Judge Bielamowicz in the Law Division.] DDS No. 14-1-0951 [25 pp.]

Defendant Shaffona Morgan was a regular customer at the Pollo Deli in Trenton. Juan Carlos Martinez, the victim, owned the deli, and his father, Juan Batista Martinez, operated it. Miguel Moran, Juan Batista's nephew, worked in the kitchen. On Nov. 24, 2005, defendant, Juan Carlos and Juan Batista had an altercation over a calling card purchased by defendant. When she was refused a refund, defendant took five DVDs from the counter and told Juan Batista that she was keeping them if she did not get her money back.

Juan Carlos, Juan Batista and Moran testified that when Juan Carlos tried to stop defendant, she pulled out a handgun and shot Juan Carlos in the back as he tried to push his father out of the way. According to defendant, Juan Batista pulled out a gun from behind the counter and pointed it at her, at which time defendant put the DVDs back and ran out of the store. Defendant claimed that outside the store Juan Batista jabbed her with the gun and, with his finger on the trigger, "[a] shot went off."

The charges were first-degree attempted murder, first-degree robbery, second-degree aggravated assault against Juan Carlos, fourth-degree aggravated assault against Juan Carlos and Juan Batista, and second-degree possession of a handgun for an unlawful purpose.

The trial began on Feb. 19, 2008. The court instructed the jury on Feb. 27, and the jury began deliberating. The following day, the jury sent a note with three questions. In response to one of the questions, the judge advised the jury that she was "preparing written instructions on robbery, theft, and attempt." That afternoon, the trial judge entered the jury room without counsel. In an ex parte discussion, the foreperson asked if the jury could take the written instructions home for the weekend. The judge granted the request. The jury returned on Monday, March 3, and continued deliberating. Later in the day, the trial judge had a second ex parte discussion in the jury room, telling the jury to be back at 9 a.m. the next day and that there would be a readback at 9:15.

The jury acquitted defendant of attempted murder and convicted her of second-degree aggravated assault against Juan Carlos, fourth-degree aggravated assault against Juan Carlos, and possession of a handgun for an unlawful purpose. The jury could not reach a unanimous verdict on robbery or aggravated assault against Juan Batista. The trial judge sentenced defendant and dismissed the two counts on which the jury deadlocked.

On direct appeal, defendant challenged the two ex parte communications and argued that it was error for the jurors to take home written instructions. The appellate panel disapproved of the ex parte communications but determined that they were not prejudicial to defendant. Also, the panel did "not discern a per se impediment to permitting the jury to take all or parts of the [jury instructions] outside the jury room." The panel declined to reverse defendant's conviction.

The Supreme Court granted defendant's petition for certification, limited to the following issues: whether the trial court erred by engaging in ex parte communications with the jury during deliberations and permitting the jurors to take home written jury instructions and, if so, whether defendant was prejudiced by any errors.

Held: Both ex parte communications between the trial judge and jury were improper and the trial court erred in permitting the jurors to take written instructions home for the weekend. Despite those errors, the record affirmatively shows that the contacts and the decision to permit the jury to take home written instructions did not prejudice defendant and had no tendency to influence the verdict.

Ex parte communications between a trial judge and a jury are improper. Any proceedings that take place during jury deliberations, such as readbacks, should be on the record, in open court, with counsel and the accused present. However, a judge's improper entry into the jury room does not automatically require reversal of a conviction. If the record affirmatively reveals that the defendant was prejudiced, reversal is required. If the record does not show whether the ex parte contact was prejudicial, prejudice is presumed. If the record affirmatively discloses that the communication had no tendency to influence the verdict, the outcome will not be disturbed. An adequate record of the contact may be able to dispel a presumption of prejudice.

The court rules are clear that jurors may not take written jury instructions home and may only review written instructions in the jury room. Allowing jurors to take home written instructions increases the risk that jurors will conduct independent research about the law or the facts of the case. In addition, jurors with written instructions in hand might be more inclined to discuss the trial with family members and friends. It is also essential that jurors deliberate as a collective group and reach a verdict through the exchange of views among all members of the jury.

Here, both ex parte communications with the jury were plainly improper. That said, the March 3, 2008, communication related only to ministerial scheduling matters, and the record therefore affirmatively shows that the communication had no tendency to influence the verdict. The ex parte communication on Feb. 28, 2008, was not only improper, but it was also error for the court to allow the jury to take home copies of the charge. The record discloses that the ex parte communication was recorded and transcribed and that the court warned the jurors not to discuss the case with others, not to do their own research and to avoid outside sources of information. The record contains no evidence that the jury behaved in an "untoward" manner or that any outside influences infected the verdict. In addition, the jury acquitted defendant of attempted murder and reached no verdict on the robbery count. The court therefore finds that the second ex parte conversation also had no tendency to influence the verdict. The record affirmatively overcomes any presumption of prejudice that might otherwise exist.

For that reason, the court does not reverse defendant's conviction. The judgment of the Appellate Division is affirmed.

Justices LaVecchia, Albin, Hoens and Patterson and Judges Rodríguez and Cuff, both temporarily assigned, join in Chief Justice Rabner's opinion.

For appellant — Stefan Van Jura, Assistant Deputy Public Defender (Joseph E. Krakora, Public Defender; Van Jura and Daniel J. Brown, designated counsel, on the briefs). For respondent — Daniel A. Matos, Assistant Prosecutor (Joseph L. Bocchini Jr., Mercer County Prosecutor; Matos and Dorothy A. Hersh, Assistant Prosecutor, on the letter briefs). For amicus curiae American Civil Liberties Union of New Jersey Foundation — Michael Noriega (Edward L. Barocas, Director; Noriega and Alexander R. Shalom on the brief).