On appeal from Superior Court, Law Division, Cape May County.
Matthews, Pressler and Petrella. The opinion of the court was delivered by Petrella, J.A.D.
[181 NJSuper Page 465] Defendants were convicted by a jury of all but three counts of a 15-count indictment for offenses arising out of two armed robberies at a Holiday Inn in Wildwood Crest on October 29, 1977. They were convicted of breaking and entering two separate rooms, armed robbery, robbery, atrocious assault and battery
while armed, assault with a dangerous weapon and threatening to take a life. The jury acquitted them on charges of assault with intent to kill; assault with intent to kill while armed, and possession of a knife. They were sentenced to an aggregate of 20 to 25 years in State Prison. Defendants now appeal on various grounds.
One of the grounds of appeal is the denial by the trial judge of a request to call one of the jurors, a Mrs. H., for interrogation pursuant to R. 1:16-1. This occurred after a defense attorney reported receiving a telephone call from a male identifying himself as a juror. Two separate motions were made by defendants which sought this relief. Both were denied.
The first motion was brought based on a affidavit of Edgar R. Holmes, trial attorney for defendant Poston, who stated he received an anonymous telephone call on the date the verdict was rendered, October 25, 1979, from a man who identified himself only as having been a juror in the case. This was shortly after the jury returned its verdict. The call was reportedly to the effect that he and two other jurors only "went along with the guilty vote because he felt that an appeal would be better than a hung jury." The basis for this feeling was his erroneous belief that the defendants could be released on bail pending appeal and could not be so released with a hung jury.
At the trial judge's direction Holmes testified under oath, over his own objection, regarding statements he made in his affidavit. Holmes said this unidentified person would not give his name and feared calling the court because he might be held in contempt. He suggested that this juror call a third party and the attorney agreed when a newspaper reporter was discussed.
The caller started to discuss the verdict and Holmes did not interrupt. The caller said he hoped the conviction would be appealed because in his opinion the defendants got a "bum deal" because there were ignorant people on the jury who just wanted to hang them. He felt the other jurors pressured him and two
other hold-outs because they wanted to get back to work for fear of losing their jobs.
Holmes also stated that on October 30, 1979 he was riding his bicycle when approached by a man who identified himself as the husband of Mrs. H., a juror. The juror's husband allegedly told him that his wife was unable to eat and sleep and was "forced" to vote guilty. Holmes said he told him to have his wife call the court but the man said that his wife was at that very moment attempting to call the newspapers. Holmes testified he then rode his bicycle to the courthouse to report this encounter to the trial judge. By coincidence, at the courthouse he saw the newspaper reporter and decided to ask him if a woman was trying to call him.
Defendants argued for the recall for interrogation of just Mrs. H. as the only juror who was known to them and because she had allegedly "gratuitously called the Atlantic City Press," and also had made public statements about pressure allegedly placed on her by other jurors. Defendants did not ask for recall of all of the jurors because of the language severely limiting such actions which was contained in State v. Athorn , 46 N.J. 247, 250 (1966), cert. den. 384 U.S. 962, 86 S. Ct. 1589, 16 L. Ed. 2d 674 (1966). Defense counsel sought to have her questioned to determine whether there was any misconduct that would warrant interrogation of all the jurors.
In a comprehensive oral opinion in which he quoted extensively from State v. Athorn, supra , and State v. La Fera , 42 N.J. 97 (1964), the trial judge denied that application.
Subsequently, defendants filed the second motion, which was a new trial motion. The failure to call in Mrs. H. for interrogation was argued as one of the grounds for a new trial.
Prior to argument of the motion on December 3, 1979, the judge became aware that Mrs. H. had received one or more "threatening" phone calls following a series of newspaper articles relative to the trial and the jury deliberations. Because the judge expected shortly to enter the hospital for an undetermined length of time, he requested that a detective from the
Lower Township Police Department interview Mrs. H. Defense counsel was provided with a copy of the report on the hearing date and objected to referring to it. We have been provided with neither the detective's report nor copies of the newspaper articles. In any event, ...