On appeal from the Superior Court of New Jersey, Law Division, Camden County.
Antell, Dreier and Skillman. The opinion of the court was delivered by Dreier, J.A.D.
Defendant appeals from convictions of two counts of second-degree aggravated assault, N.J.S.A. 2C:12-1b(1); third-degree aggravated assault, N.J.S.A. 2C:12-1b(2); two counts of kidnapping, N.J.S.A. 2C:13-1b(1) or (2); second-degree attempted kidnapping, N.J.S.A. 2C:5-1 and 2C:13-1b(1) or (2); two counts of a lesser-included offense of attempted criminal sexual contact, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:14-3b; and assault, N.J.S.A. 2C:12-1a. He was sentenced to an aggregate sentence of sixty years with a fifteen-year parole disqualifier. The offenses grew out of defendant's attacks upon three women during the evening of January 10, 1990 and the morning of January 11, 1990. Defendant claimed inconsistent alibis at the time of his original arrest and at trial.
Defendant raises three issues on appeal, all of which relate to procedural issues:
The Lower Court erred by conducting an ex-parte interrogation of a juror, in not disclosing the contents thereof to counsel, and not declaring a mistrial; but instead requiring the juror to continue in his deliberations for two additional days even though the juror was adamant that he could not agree in the verdict and that the other jurors were overcoming his will.
The Lower Court erred in refusing the defendant's request to speak with his own attorney during a recess in the proceeding called during the course of his cross-examination.
The Lower Court erred by visibly smiling during the testimony of the defendant's key alibi witness where the defendant relied solely upon a defense of Alibi; such conduct expressing the Court's disbelief of the testimony whereby infringing upon the jury's function as finder-of-fact.
The facts giving rise to the first issue, involving a recalcitrant juror, are unusual. During the first day of deliberations, the jurors submitted two notes asking to have certain portions of testimony read back to them. A third note was submitted, stating that "a juror" wanted to hear certain parts of the testimony. After the testimony was read back, juror W. addressed the court, saying: "Can I ask you a question?" The court explained that the question would have to come after the jury went back to the jury room. The jury then submitted a note stating that "one juror" wanted to see certain testimony in writing. The Judge brought the jury back and explained that testimony was not in written form, but that it could be read back.
At the Conclusion of the first day of deliberations, juror W. contacted a sheriff's officer and asked to see the Judge. The Judge tried to contact the lawyers, but found that the defense lawyer had left the courtroom. Juror W. had the following Discussion with the Judge:
JUROR W.: . . . I am mentally upset right now and I've been mentally upset for the past day and previous day.
To reach a decision it has to be unanimous and I feel at this point we can never reach a decision.
It's just that I'm getting a lot of peer pressure and stress to go with the other 11 jurors' ways and I feel that I should try to follow the law which you put down and which I interpreted it the way it should be.
And because of that I'm receiving a lot of stress from all the jury members to change my mind. And I feel that I cannot change. I don't think it would be fair to the defendant, the prosecutor, that I change my mind just because other people want me to.
THE COURT: Sir, I don't want you to indicate to me how you are going or they are going.
JUROR W.: I'm just saying they are trying to change me [sic] mind.
THE COURT: Sir, part of the deliberations is the free ...