On appeal from Superior Court of New Jersey, Law Division, Camden County, 98-12-4209-I.
Before Judge King, Wecker and Lisa.
The opinion of the court was delivered by: Lisa, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
During deliberations in this criminal trial, the jurors requested a readback of the victim's testimony. Over defense objection, the judge directed that the readback occur in the jury deliberation room, unsupervised by the judge, and out of the presence of defendant. Both counsel were permitted to be present. After the readback, defendant's mistrial motion was denied, as was his later motion for a new trial. We hold that the readback of testimony is part of the trial and a critical stage of the criminal proceedings, that defendant has the right to be present, and that the procedure must be conducted in open court, on the record, and under the supervision of the trial judge. We reverse and remand for a new trial.
The twelve-count indictment charged defendant with first degree kidnapping, N.J.S.A. 2C:13-1b(1)(2) (count one); first degree aggravated sexual assault, N.J.S.A. 2C:14-2a (counts two, three, four and five); second-degree sexual assault, N.J.S.A. 2C:14-2c(1) (counts six and seven); third-degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3a and -2a(3) (counts eight and nine); fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3b and -2c (count ten); third-degree possession of a weapon, a knife, with the purpose to use it unlawfully, N.J.S.A. 2C:39-4d (count eleven); and fourth-degree possession of a knife under circumstances not manifestly appropriate for its lawful use, N.J.S.A. 2C:39-5d (count twelve). The jury found the defendant guilty of counts six, ten and twelve, and not guilty of the remaining counts. The judge sentenced defendant to consecutive prison terms of eight years on count six, fifteen months on count ten and fifteen months on count twelve. Defendant was also ordered to undergo community supervision for life and to comply with the registration requirements of Megan's Law. Appropriate mandatory monetary assessments were imposed.
Because of the basis for our decision, only a very brief summary of the facts is needed. The events underlying all of the charges are alleged to have occurred on a single date, May 27, 1998, over the course of about ten hours. They all pertain to a single victim, L.R., a sixteen year old female. Defendant was thirty-one years old. Defendant and L.R. had been friends for about four years. They went to defendant's home consensually. Over the ensuing hours they engaged in sexual activity. According to defendant, the activity was consensual. According to L.R., defendant threatened her with a knife, held her against her will, and forcibly raped her.
Defendant raises these arguments on appeal:
DEFENDANT'S CONSTITUTIONAL RIGHT TO BE PRESENT AT HIS TRIAL WAS VIOLATED WHEN THE COURT PERMITTED A READBACK OF L.R.'S TESTIMONY TO THE JURY IN THE JURY ROOM AS OPPOSED TO DOING SO IN OPEN COURT. DEFENDANT'S MOTION FOR A MISTRIAL SHOULD HAVE BEEN GRANTED.
THE VERDICT OF THE JURY WAS AGAINST THE WEIGHT OF THE EVIDENCE.
PREJUDICIAL ERROR WAS COMMITTED BY THE TRIAL JUDGE WHEN IN RESPONSE TO A QUESTION FROM THE JURY AS TO COUNT TEN OF THE INDICTMENT, THE COURT SAID THAT THIS COUNT ...