Improper Ex-Parte Conduct Results in a Reversal – State v. Shaffona Morgan (A-119-11)
State v. Shaffona Morgan (A-119-11)
On August 8, 2013 the New Jersey Supreme Court affirmed the conviction of Shaffona Morgon for second-degree aggravated assault, fourth-degree aggravated assault and possession of a handgun for an unlawful purpose. On November 24, 2005, the defendant had an altercation with deli store owners after she purchased a Boost Mobile calling card, returned to the deli later claiming the Boost Mobile card was already used and demanding a refund and a new Boost Mobile. The store owners would not refund her and provide her a new card so the defendant grabbed a handful of DVDs and attempted to leave the deli. At this point the facts are unclear as to whether the defendant drew her gun first or the clerk behind the counter drew his shotgun first. At the defendant’s trial, the trial judge engaged in ex-parte communications with the jury on two occasions and allowed the jury to take home court materials. The defendant’s appeal was based on the trial judge’s improper conduct.
The trial judge’s first ex-parte communication was regarding scheduling and the second was the charge on attempt, robbery, and theft. Improper communications are evaluated in three manners 1) if the record reveals the defendant was affirmatively prejudiced, reversal required; 2) if the record does not show the ex-parte communication, prejudice is presumed; 3) if the record affirmatively disclosed that the communication had no tendency to influence the verdict, the outcome should not be disturbed. All communications were on the record and both attorneys received copies of the charges the judge provided the jury to take home. The trial court’s record was adequate to determine if prejudice against the defendant occurred.
When the Appellate Court reviewed the improper conduct by the trial judge in allowing the jury to take home the charges, under Rule 1:8-8, it found there not to be an “impediment to permitting the jury to take all or parts of the charge outside the jury room.” See State v. Morgan, 423 N.J. Super. 453, 473 (App. Div. 2011). The Supreme Court revised the wording of R. 1:8-8(a) and emphasizes court materials are only for review in the jury room. In review of the two ex-parte communication by the trial judge, the first communication was a scheduling issues and the second communication on charges that the jury did not convict the defendant of. Although all of the trial judge’s conduct was improper, the trial record affirmatively overcomes any presumption of prejudice against the defendant. The take away from this case is that only improper ex-parte conduct that is off the record or affirmatively prejudices the defendant will result in a reversal.