On appeal from Superior Court of New Jersey, Law Division, Atlantic County.
Before Judges Michels, Skillman and Kestin.
The opinion of the court was delivered by
A jury convicted defendant of two counts of armed robbery, in violation of N.J.S.A. 2C:15-1; conspiracy to commit robbery, in violation of N.J.S.A. 2C:5-2; two counts of aggravated assault, in violation of N.J.S.A. 2C:12-1b(4); possession of a weapon for an unlawful purpose, in violation of N.J.S.A. 2C:39-4a; and possession of a handgun without a permit, in violation of N.J.S.A. 2C:39-5b. The court sentenced defendant to concurrent eighteen-year terms of imprisonment, with eight years of parole ineligibility, for his two convictions for armed robbery. The court also imposed a concurrent five-year term of imprisonment for possession of a handgun without a permit. The court merged defendant's convictions for conspiracy, aggravated assault and possession of a weapon for an unlawful purpose into his convictions for armed robbery.
The trial Judge's handling of a question from the jury gives rise to the only troublesome issue presented by this appeal. Shortly after it began deliberating, the jury sent a note to the Judge which read:
Officer Flipping account of weapon recovery over car radio.
Manjit Singh re: one or two people going into Chamberlain's pockets.
After reading this note into the record, the Judge commented:
Candidly, I don't understand what they want. I certainly have an idea that perhaps they want the testimony read over, but I don't know.
However, instead of following the normal procedure of bringing the jury into the courtroom in order to resolve this uncertainty, the Judge proposed as an alternative that, if counsel did not object, he would "go to the jury room and candidly ask and report back to the two of you on the record." In the absence of any objection to this proposed procedure, the Judge proceeded to enter the jury room outside the presence of counsel and defendant and without a court reporter to record his colloquy with the jury. After the Judge emerged from the jury room, he advised counsel that the jury did indeed desire to hear a readback of certain testimony. The Judge also indicated that while he was in the jury room the foreperson had asked him an additional question not encompassed by the jury's original note. The Judge again expressed some uncertainty as to what information the jury was seeking, and this time he brought the jury back into the courtroom and interrogated the foreperson regarding all three of the jury's questions. Within a short time after hearing the Judge's responses to its questions, the jury returned its verdict.
A Judge should avoid engaging in any ex parte communications with the jury regarding its deliberations. The Supreme Court of the United States has described some of the dangers inherent in such communications in condemning a federal district court Judge's ex parte Discussions with the foreman of a deliberating jury:
Any ex parte meeting or communication between the Judge and the foreman of a deliberating jury is pregnant with possibilities for error. . . . Even an experienced trial Judge cannot be certain to avoid all the pitfalls inherent in such an enterprise. First, it is difficult to contain, much less to anticipate, the direction the conversation will take at such a meeting. Unexpected questions or comments can generate unintended and misleading impressions of the Judge's subjective personal views which have no place in his instruction to the jury -- all the more so when counsel are not present to challenge the statements. Second, any occasion which leads to communication with the whole jury panel through one juror inevitably risks innocent misstatements of the law and misinterpretations despite the undisputed good faith of the participants.
[United States v. United States Gypsum Co., 438 U.S. 422, 460-61, 98 S. Ct. 2864, 2885, 57 L. ...