On appeal from Superior Court, Law Division, Essex County.
Petrella, R.s. Cohen and Arnold M. Stein.
In July 1988, a jury convicted defendant Robert Rodriguez of fourth degree aggravated assault (N.J.S.A. 2C:12-1b(4)); third degree terroristic threats (N.J.S.A. 2C:12-3); second degree possession of a handgun for an unlawful purpose (N.J.S.A. 2C:39-4a); and fourth degree possession of a weapon (Molotov cocktail) for unlawful purposes (N.J.S.A. 2C:39-4(d)). The jury returned not guilty verdicts on seven other counts*fn1 in the indictment. On September 23, 1988 the trial Judge sentenced Rodriguez to seven years in prison, three years without parole eligibility on the conviction of possession of a handgun for unlawful purposes. Concurrent sentences were imposed on the other convictions as follows: nine months on the conviction for
aggravated assault; four years on the conviction for terroristic threats; and nine months on the conviction for possession of the Molotov cocktail for unlawful purpose.
On appeal, Rodriguez raises the following arguments:
I. The defendant's constitutional right not to be twice placed in jeopardy for the same offense was violated when the Judge refused to accept the not guilty verdicts announced on all counts by the jury foreperson and sent the jurors back for further deliberations. (Not raised below).
II. The trial Judge's ruling that the jurors could elect a new foreperson to replace the one who had announced the not guilty verdicts, violated R. 1:8-4, and served to coerce guilty verdicts in violation of defendant's constitutional rights to a unanimous verdict from an impartial jury.
III. The defendant's constitutional right to compulsory process was violated when the Judge refused to continue the trial so that defendant could present certain jail records which had been subpoenaed, but not received.
Rodriguez was the victim's boyfriend, and had been living in her apartment prior to the attack. The victim testified that after Rodriguez moved into her apartment, he quit his job. This caused her to tell Rodriguez to "move out because he wasn't even making an effort of looking for another job." The victim said that on October 17, 1987, after an argument about the living arrangement, Rodriguez forced her to have sex with him. She did not immediately report this rape to the police. Around 7:00 p.m. that night she left to pick up her two children at her mother's house. At 11:00 p.m. she returned to her apartment and spent the rest of the night with Rodriguez in the apartment.
At approximately 3:00 p.m. the next day Rodriguez started another argument and threatened to scar the victim's face and burn the building down with a "cocktail bomb" (Molotov cocktail). The victim testified that Rodriguez then took a roll of aluminum foil and hit her in the face with the serrated edge of the box, knocking her to the floor. Rodriguez then took a handgun and rolled the cylinder with one loaded chamber. He pointed it at the victim's face, said he was going to kill her, and pulled the trigger four times. The gun did not fire. The victim said that she was raped again by Rodriguez who thereafter
refused to let her leave the apartment, threatening to shoot her if she attempted to leave.
The following morning the victim sent her daughter to school. She then got her son and left the apartment while Rodriguez slept. She went to a friend's house and telephoned her sister. After her sister's arrival, the two women took the victim's daughter to the hospital for asthma medication. After "three to four" hours in the hospital, the victim arrived with her sister at the police station about 9:00 p.m. to file a complaint.
Officer O'Connor of the Newark Police Department testified that the victim reported that Rodriguez assaulted her with a "roll of aluminum foil" and threatened her with a handgun. The victim also reported that Rodriguez threatened to burn the building down with a Molotov ...