State v. Negrete, A-3301-09T2; Appellate Division; opinion by Grall, J.A.D.; decided and approved for publication August 13, 2013. Before Judges Grall, Koblitz and Accurso. On appeal from the Law Division, Mercer County, Indictment No. 06-01-0121. D.D.S. No. 14-2-0994 [11 pp.]

The first jury to try defendant Jose Negrete on charges related to the killing of Jeri Lynn Dotson and the attempted killing of Alex Ruiz was unable to reach a verdict. A second jury found defendant guilty of conspiracy to commit murder, attempted murder, and murder. After merging defendant's conspiracy conviction, the judge sentenced him to a life term of imprisonment for murder and a consecutive twenty-year term for attempted murder. Both sentences are subject to terms of parole ineligibility and supervision required by the No Early Release Act.

Defendant appeals, urging reversal of his convictions and, in the alternative, contends that his sentences are excessive and should be concurrent. The most significant question is whether Juror Number 8's (Juror 8) participation in deliberations requires reversal of his convictions. Juror 8 disclosed information about his relationship with a witness, in violation of the judge's direction, and disclosed information he had heard about the crime scene prior to trial that was not introduced in evidence, in violation of the jury instructions.

Held: After Juror 8 disclosed information not in evidence, the court erred in relying on the jurors' individual expressions of ability to decide the case only on the evidence adduced at trial and the law. The offending juror had demonstrated that he could or would not do that. And the other jurors' professions of ability to serve as required were immaterial because the errant juror's disclosure of information not in evidence had the capacity to influence their deliberations.

Defendant's claim of juror misconduct is based on disclosures Juror 8 made in deliberations. The other jurors were concerned by the fact that Juror 8 was on the jury despite knowing Dimas Peralta, the father of Dotson's children, and by the fact that Juror 8 had disclosed facts not in evidence, including that one of the victim's daughters said she put a candy on her mothers' body. Consequently, they sent a note to the judge asking for guidance.

The judge and the attorneys already knew that Juror 8 knew Peralta. During jury selection, Juror 8 came to sidebar and advised the judge and lawyers of his acquaintance with Peralta. Juror 8 said they were in the same school years before, but he also said he had not seen Peralta for a long time and did not consider Peralta a friend. Juror 8 was confident that he could decide the case without being influenced by their relationship. The judge told Juror 8 not to disclose his relationship with Peralta to the other jurors, and Juror 8 said he would not. Neither the judge nor the attorneys took any action to remove him.

After receiving the note and speaking with Juror 8, the judge interviewed each juror individually, in the presence of counsel. The judge's questions were properly phrased to avoid eliciting information about the deliberative process and discover any information disclosed by Juror 8 that was not presented at trial. Crediting Juror 8's account of the context in which he discussed the candy with the other jurors, she found that none of his disclosures were malicious or driven by personal agenda, and she determined that Juror 8 understood that he could not make any further disclosures and must decide the case based solely on the evidence.

In this case, it was error to rely upon Juror 8's profession of his ability to decide the case solely on the evidence adduced at trial and the judge's instructions on the law. Juror 8 had demonstrated his inability or unwillingness to do either. In disregard of personal direction from the judge and the jury instructions at the close of case, during deliberations Juror 8 had disclosed his relationship with Peralta and what he heard about the candy, thereby supplementing the evidence introduced at trial and contradicting defense counsel's closing argument. He also told the other jurors that his girlfriend, Mimi, who knew the children's aunt, told him that the aunt said one of the children told her she put the candy on her mother's body. Moreover, Juror 8 had failed to disclose his girlfriend Mimi's link with Peralta's sisters and Dotson's children during jury selection. Had he done so, his dismissal for cause before the jury was sworn would have been required.

Juror 8's mid-deliberation disclosures made it apparent that he was not qualified to sit. He could not segregate what he had heard about the crime prior to trial from the evidence presented at trial and could not follow the judge's direction for him to refrain from disclosing his relationship with Peralta or the general instructions directing all jurors to consider nothing but the evidence.

In this circumstance, reliance on Juror 8's representation was an abuse of discretion. Disclaimers of partiality by one who has a relationship with the victim or the victim's family members are inadequate because they are contrary to human nature.

The appellate panel concludes that the judge erred in allowing Juror 8 to continue participation after learning about his misconduct.

Juror 8's disclosures had the capacity to influence. When the jury presented the note, defense counsel argued that Juror 8's account of how the candy came to be on Dotson's body was problematic because it contradicted his closing argument with information not in evidence. The judge discounted that argument, noting there was ample evidence establishing that one of Dotson's children found her body.

The potential impact of a juror disclosing information about the candy, while the jurors were discussing that candy during deliberations, cannot be overstated. The disclosure did even more than provide a new explanation for the candy being on Dotson's body and thereby undermine defense counsel's closing. It conveyed a picture of a three-year-old child putting candy on her mother's body and thinking enough about her gesture to tell her aunt about it — a truly disturbing image. The tendency of Juror 8's misconduct to preclude the other jurors from considering nothing but the evidence and the law in deciding whether the state proved defendant's guilt was too apparent to permit them to decide that issue.

The appellate panel reverses and remands.

For appellant — Joseph E. Krakora, Public Defender (Alison Perrone, Designated Counsel, on the brief). For respondent — Joseph L. Bocchini, Jr., Mercer County Prosecutor (John P. Boyle, Jr., Assistant Prosecutor, on the brief).