On appeal from the Superior Court of New Jersey, Law Division, Gloucester County.
King, Long and R.s. Cohen. The opinion of the court was delivered by King, P.J.A.D.
This appeal concerns the adequacy of instructions to the jury in a criminal case. The instructions were delivered partly orally and partly in writing. We conclude that the instructions in their totality were both inadequate and inartful. We hold that failure to read all of the proper instructions to the jury was reversible error.
The defendant was indicted on August 13, 1987 on charges of second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); second-degree burglary, N.J.S.A. 2C:18-2; and fourth-degree theft, N.J.S.A. 2C:20-3. The case was tried in December 1989 and verdicts of guilty on all counts were returned on December 22. A motion for new trial based on a claim of ineffective assistance of counsel was denied. Defendant was sentenced to concurrent seven-year terms on the assault and burglary counts and a consecutive nine-month term on the theft count. Defendant contends on appeal that: (1) the jury instructions were so inadequate as to constitute plain error, (2) counsel was ineffective, and (3) the supplemental jury instruction on deadlocked deliberations was in error.
The prosecution arose out of an assault on a young woman in Clayton in the early morning hours of July 4, 1987
while she was alone in her home. The defendant and the victim had been social friends for some time before the event. Defendant had been accustomed to coming and going from her home rather freely. After the attack she went to the hospital, got 13 stitches in her scalp, and was observed for a concussion for four days as an inpatient.
Defendant denied that he was the attacker. The jury had to resolve issues concerning the identity of the assailant, the intent upon entry, the degree of the assault, and the occurrence of a theft. Defendant in the past had possessed property of the victim under circumstances from which the jury could have concluded that his possession of her property in this situation arose from a permissive rather than a criminal taking. Thus the burglary and theft aspects were more complex than in a routine case where the victim and the alleged perpetrator were each unknown to the other before the crime.
The jury retired to deliberate on Thursday, December 21, 1989 at 11 a.m. The jury asked for and received reinstruction on reasonable doubt at 2 p.m. on that date. At 2:45 p.m. on that date the jury reported that they were deadlocked. The judge consulted with and gave counsel a copy of "the ABA charge that was approved in State v. Czachor, 82 N.J. 392, 413 A.2d 593 (1980)." The judge then brought the jury into the courtroom and told them:
Okay. Now, with that discussion of procedurally how we operate and what the possibilities are for your continuing, I have something to read to you.
The verdict must represent the considered judgment of each juror. In order to return a verdict, it is necessary that each juror agree thereto and your verdict must be unanimous. I already told you that. It is your duty as jurors to consult with one another and to deliberate with a view to reaching an agreement if you can do so without violence to individual judgment.
Another judge who was older and wiser, more experienced than I one time says or told me that when he told jurors in situations like this was why don't you people consider changing position and adopting the other person's viewpoints. And if you are voting in direction A say, all right, "I'm going to assume the arguments for direction B and vice versa, see if you can convince one another of something."
I'm not telling you to do it. I'm not even suggesting that you should do it. I'm telling you that that is one way that others have resolved the issue if, in
fact, it's resolvable. It may not be. You're not under any direction to come to grips with it. Each of you must decide the case for yourself but do so only after an impartial consideration of the evidence with your fellow jurors.
In the course of your deliberations, do not hesitate to reexamine your own views and change your opinion if convinced it is erroneous, but not -- do not surrender your honest convictions as to the weight or effect of evidence solely because of the opinion of your fellow jurors or for the mere purpose of returning a verdict. You are not partisans. Meaning you're not assigned to a particular side. You are judges, judges of the facts. Your sole interest is to ascertain the truth from the evidence in the case.
And with that I would ask you please go back and try again.
Defendant objected to the underlined portion of the charge as encouraging the jurors who believed that he was not guilty to adopt the prosecutor's position. While we do not find the underlined portion of the charge reversible error in itself, we think this folksy invitation to exchange viewpoints would have been better left out.
The jury later that afternoon wanted certain testimony of the victim read back. After a discussion with counsel and a search of the record, the judge called the jury back into the courtroom. He told them that he had not been able to find the answer to their question. Since it was after 4:30 p.m. he said that unless they were on the brink of a decision, he would excuse them until the next morning, Friday, December 22nd. A discussion ensued with one juror concerning starting at 10 a.m. the next morning rather than 9 a.m. because she wanted to be with her students for their Christmas exchange. A second juror then questioned the judge:
JUROR ELEVEN: Can this thing go any longer besides tomorrow?
THE COURT: Probably not. I really don't know how.
JUROR ELEVEN: Can it, though?
JUROR ELEVEN: I'm just saying --
THE COURT: -- sarcastic or funny. Can it? Unfortunately, it's subject to whatever I say. And I have to get a sense of what's going on and depends on where we are tomorrow. That's all. I'm not trying to be coy.
You say can it -- let me just give you a hypothetical situation. Let's say something happened that we had to adjourn at 2:00 for some reason, but you folks gave me some indication you ...