On certification to the Superior Court, Appellate Division.
For reversal -- Chief Justice Wilentz, and Justices Pashman, Handler, Pollock and O'Hern. For affirmance -- Justices Clifford and Schreiber. The opinion of the Court was delivered by Pollock, J. Clifford and Schreiber, JJ., dissenting.
[90 NJ Page 119] The issue on this appeal is whether the trial court's direction of a verdict of guilty on a charge of contributing to the delinquency of a minor is harmless error in the trial of a charge for rape. The Appellate Division found the instruction to be harmless and affirmed the conviction. We believe the erroneous instruction contributed to the jury verdict on the charge of rape.
Consequently, we reverse and remand the matter for a new trial.
Defendant, Collier, was tried in 1978 on a two-count indictment. The first count charged him with the rape of a 16-year-old girl and the second count charged him with contributing to the girl's delinquency. Both the complainant and the defendant testified that they had participated in an act of sexual intercourse, but their versions differed drastically.
The complainant testified that she was walking along a street in a residential area of Berkeley Township at about 4:00 p.m. in September 1976 when she noticed defendant walking behind her. When defendant arrived alongside of her, she said "Hi" and stopped to light a cigarette. He asked her for directions to a nearby club. She testified that before she could answer, he grabbed her by the throat and jaw and keeping his grip on her, guided her into nearby woods. He told her to lie down, but she protested: "I told him, I said, now if I go home with my hair messed up then my grandmother's gonna think something." Complainant testified further that defendant told her he would stop if he hurt her. The act of intercourse occurred, after which defendant fled. Complainant went immediately to a nearby community center where the police and her grandmother were called. The grandmother took complainant, who was crying hysterically, to an area hospital.
The defendant, on the other hand, testified that he left the Garden State Parkway to buy gasoline and became lost trying to return to the Parkway. He parked his car and was walking to obtain directions when complainant approached him and asked for a cigarette. After a brief conversation, the girl suggested that "You can do anything you want to do around here." She reassured him, "Hey, I've done it many other times, quite a few times, so everything is okay." Without describing all the details, his version is that they engaged in consensual intercourse.
Medical tests established the fact of intercourse, but there was no evidence of force, such as bruises or cuts. Thus, the evidence required the jury to choose between the credibility of the versions proffered by the complaining witness and the defendant.
At the close of the evidence, the trial court informed counsel that it intended to direct the jury to return a verdict of guilty on the charge of contributing to the delinquency of a minor. Defense counsel objected, arguing that such a charge "taints the entire procedure." Nonetheless, the court told the jury that it was "going to do something unusual" and direct them to find the defendant guilty of contributing because "intercourse with a minor female is an illegal act." Defense counsel repeated his objection at the end of the charge.
The jury deliberated for about two and one-half hours before sending a note to the court that it was unable to reach a verdict. The court urged the jury to continue. One juror raised a hand, as if to ask a question, but the court stated it could not engage in colloquy with an individual juror. The jury then resumed deliberating and 26 minutes later returned its verdict of guilty on both counts.
At sentencing, the trial court found that the contributing charge "is in fact included" in the rape charge. The trial court then sentenced the defendant to a prison term of five to seven years, but released him on ...