On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 99-02-0263.
Before Judges Newman, Axelrad and Holston, Jr.
The opinion of the court was delivered by: Holston, Jr.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Defendant, Richard A. Williams, appeals his January 25, 2002 conviction and sentence for two counts of second-degree sexual assault contrary to N.J.S.A. 2C:14-2c(1). We reverse and remand.
On February 24, 1999, the Union County Grand Jury returned Indictment No. 99-02-0263 against defendant, charging him in counts one and two with second-degree sexual assault, contrary to N.J.S.A. 2C:14-2c(1), and counts three and four with fourth-degree criminal sexual contact, contrary to N.J.S.A. 2C:14-3b.
On May 3, 1999, defendant filed a motion to sever all four counts of the indictment and to proceed separately to trial on each count. On June 17, 1999, the judge agreed to sever only count four of the indictment, leaving counts one through three to be tried together in a single trial.
Trial was held before a judge and a jury on July 18, 19, 24, 25, 26, and 27, 2001. On July 27, 2001, the trial judge excused a deliberating juror and denied defendant's motion for a mistrial. That same day, the jury convicted defendant of sexual assault on counts one and two but acquitted defendant of fourth-degree criminal sexual contact on count three.
On December 7, 2001, defendant's motion for a new trial was heard and denied. On January 25, 2002, defendant was sentenced on counts one and two to consecutive seven-year terms of imprisonment on each of the second-degree sexual assault counts, to register as a sex offender pursuant to N.J.S.A. 2C:7-2 and N.J.S.A. 2C:7-3, and to community supervision for life pursuant to N.J.S.A. 2C:43-6.4. In addition, the appropriate fines and assessments were imposed. On December 18, 2002, defendant filed a notice of appeal.
Defendant is a certified massage therapist, who is alleged to have digitally penetrated the vagina of A.C. during the course of a massage on March 18, 1997. Defendant is also alleged to have digitally penetrated the vagina of R.I. on May 3, 1998.
A.C., also a certified massage therapist, was introduced to defendant in 1994. At the time, A.C. was a massage therapy student and both were employed at the same fitness center. When the fitness center closed, A.C. and defendant "traded" massages as a professional courtesy. Their relationship was described as "casual," and the pair was never involved romantically. A.C. and defendant traded massages from 1995 to early 1997 two or three times without incident.
A.C. testified as follows: On March 18, 1997, defendant called A.C. telling her that he needed a massage and that he would perform a massage on her. A.C. agreed and went to defendant's home where his office was located in the basement.
Defendant's wife was home at the time. After conversing with defendant's wife, A.C. went downstairs to the basement. A.C. told defendant that she preferred to perform the first massage and receive her massage second. Defendant then removed his shirt and began to undo his pants. A.C. was surprised by defendant's conduct because he usually waited for her to leave before disrobing. A.C. left the room so defendant could finish disrobing and positioned himself on the table under the sheet. A.C. then gave defendant a massage.
After completing defendant's massage, A.C. left the room so that he could dress. When she returned, defendant remained in the room. After prompting him to leave so that she could get undressed, defendant left. Defendant had never remained in the room while she had disrobed on previous occasions. A.C. undressed and laid down on the massage table. For the first part of the massage, while she was on her back, nothing unusual occurred.
For the second part of her massage, A.C. was lying on her stomach. While in this position, A.C. alleged that defendant performed an unusual move by using his left hand on her inner thigh and positioning his right hand on her lower back. Usually, both hands would be used to work on the leg. Defendant moved his hand further and further up A.C.'s thigh and penetrated her vagina with his fingers.
A.C. reacted immediately. She jumped off the table and looked at defendant saying: "Rick, what the fuck do you think you're doing?" A.C. alleged that defendant could not look at her and just looked at the floor and responded, "I was just rubbing your lower back." In shock, A.C. laid back down on the table for twenty or thirty seconds, and defendant did some "finishing touches." Defendant left the room when he was finished and returned after A.C. had dressed.
Upon leaving defendant's home, A.C. sat in her car for a while and then went to her mother's house, arriving at 11:30 p.m. A.C.'s mother was sleeping, and her father was not home. The next evening, A.C. reported the incident to her mother. A.C.'s mother dissuaded A.C. from reporting the incident to the police, believing it would be too traumatic for her.
In 1997, R.I. was forty-seven years of age and suffered from rheumatoid arthritis. She testified that an acquaintance recommended that she try massage therapy with defendant for her condition. When R.I. contacted defendant, he told her that he worked at two locations and that one of his offices was in his home in Scotch Plains.
When R.I. arrived for the first massage, she met defendant's wife and son. R.I. completed the necessary health forms. Defendant told her that it was optional if she wanted to keep on her underwear. R.I. opted to be nude. Defendant left while R.I. undressed and positioned herself on the table. Nothing inappropriate occurred. Additionally, R.I. indicated that she could immediately feel the benefits. Over the next nine months, defendant gave R.I. ten to twelve massages. However, R.I. had to stop due to her financial situation. R.I. informed defendant that she would contact him when her financial situation improved.
On May 3, 1998, defendant contacted R.I. to offer her a free massage because she was a loyal customer, despite the fact that her financial situation had worsened. R.I. agreed and arrived at defendant's home that afternoon. No one else was home. The massage was routine and appropriate for the first half when R.I. was on her back.
When R.I. flipped over onto her stomach, defendant began performing "deep pressure" on her back with his forearm. She was facedown in the headrest and could not move. Defendant told R.I. that he was going to apply more pressure. He placed his knee on the table for more leverage - something he had never done before. Defendant then straddled her on the table with his knees at her thighs. Defendant's hand then brushed against her vaginal area. At first, R.I. assumed that it was accidental. However, defendant continued to use his forearm to hold her still and leaned into her, inserting his fingers into her vagina and emitted a "moaning sound."
Defendant asked, "How does this feel?" R.I. could not speak or respond. Then defendant stopped. R.I. sat up on the table. Defendant began to converse with her in a "monotone, almost ominous kind of voice." Defendant told her that she could come over anytime for a massage. Because defendant would not leave the room, R.I. felt compelled to dress in front of him. R.I. went up the stairs and walked quickly out the front door.
R.I. got into her car and cried. She drove around the corner and "collapsed" for several minutes. She subsequently drove to her parents' home to pick up her daughter. However, she did not report the incident to either her mother or her father. Nor did she tell her husband when she returned home later that night because she was having marital problems.
The next morning, R.I. was working out at the gym. Her friend, Eddie Currie (Currie), observed that R.I. was not her usual self. R.I. and Currie were both very good friends, but they were not romantically involved. The two went to Currie's apartment where she told him that defendant sexually assaulted her. Currie suggested that she report the assault to the police and seek counseling. On May 5, 1998, the next day, R.I. visited the rape crisis center. On May 18, 1998, R.I. reported the sexual assault to the police.*fn1
At trial, K.T. also testified to defendant's alleged sexual misconduct during the course of her massage. She indicated that she received monthly massages from defendant. She testified that while she was lying on her stomach with her palms up, defendant rested his penis in her hand. She did not say anything to him because she at first thought the act was accidental. When K.T. received her last massage from defendant in November 1996, defendant placed his erect penis in her hand while she was on her stomach with her palms up. Additionally, while he was massaging her leg, his thumb pressed against her vagina over her underwear. K.T. went to the prosecutor's office after she saw the newspaper article. She provided a statement to police in February 1999.
Defendant presented nine character witnesses on his behalf. All of the witnesses testified that defendant was honest and law-abiding.*fn2 Defendant also testified on his own behalf. He denied any wrongdoing. He testified as to his qualifications and experience as a massage therapist. Defendant testified that he contacted A.C. because his back hurt. He also indicated that he did not consider disrobing in front of another massage therapist to be an issue since, as massage therapists, they both see bodies all of the time. Defendant claimed that his offer of a free massage to R.I. was based on a business and marketing decision, not an excuse to get R.I. over to his home. As for K.T., defendant noted that she bought gift certificates from him in December 1996 and had referred a client to him, whom he massaged in February 1998. Defendant also stated that the accusations adversely affected his massage therapy business, tarnished his reputation in the community and caused his wife to be hospitalized for thirteen weeks.
On July 17, 2001, the jury convicted defendant of counts one and two (second-degree sexual assault) and acquitted him of count three (fourth-degree criminal sexual contact).*fn3
Defendant presents the following arguments for our consideration:
* * * * * [At the direction of the court, per Rule 1:36-3, the discussion of POINT I and POINT IV in the appeal are omitted from the published version of the opinion.]
BECAUSE THE JUROR WHO WAS EXCUSED AT A CRITICAL POINT IN DELIBERATIONS WAS NEITHER ILL NOR UNABLE TO CONTINUE, HIS REMOVAL AND REPLACEMENT WITH AN ALTERNATE JUROR VIOLATED DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL BY AN IMPARTIAL JURY. U.S. CONST. AMENDS. VI, XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10.
THE COURT'S FRESH COMPLAINT INSTRUCTION TO THE JURY WAS ERRONEOUS, THEREBY DENYING DEFENDANT A FAIR TRIAL AND DUE PROCESS OF LAW. U.S. CONST. AMENDS. VI AND XIV; N.J. CONST. (1947) ART. I, PAR. 10.
Defendant argues that the trial court erred by removing Juror Number 4 and substituting an alternative juror rather than declaring a mistrial. Defendant contends that the record does not demonstrate that the juror was unable to continue deliberating but, instead, that Juror Number 4 was not convinced beyond a reasonable doubt as to defendant's guilt. Defendant asserts that the evidence demonstrates that his position differed from the rest of the jury. In support of this contention, defendant notes (1) the length of deliberations to that point (approximately twelve hours); (2) the focus on the testimony of R.I. and "fresh complaint" witness, Currie, by the jury's request for a read-back of both witnesses' testimony; (3) the jury's request for a copy of the court's instructions as to how to arrive at a judgment and the evidence that may be considered; and (4) the trial court's decision to read the "modified Allen charge" as part of the court's response to the jury's request.*fn4 Defendant notes that once Juror Number 4 was removed and replaced with an alternate, a verdict was reached fifty-nine minutes thereafter. Defendant asserts that a mistrial should have been granted because the jury was essentially deadlocked. Defendant contends that the trial judge's decision to remove Juror Number 4 and substitute an alternate juror rather than grant defendant's motion for a mistrial constitutes reversible error.
Rule 1:8-2(d)(1) governs the removal and substitution of deliberating jurors and provides, in pertinent part:
If the alternate jurors are not discharged and if at any time after submission of the case to the jury, a juror dies or is discharged by the court because of illness or other inability to continue, the court may direct the clerk to draw the name of an alternate juror to take the place of the juror who is deceased or discharged. When such a substitution of an alternate juror is made, the court shall instruct the jury to recommence deliberations and shall give the jury such other supplemental instructions as may be appropriate.
Our Supreme Court has noted that "[t]he Rule attempts to strike a balance between the need for judicial economy, especially in the context of lengthy trials, and the fundamental right of defendants to a fair trial by jury." State v. Valenzuela, 136 N.J. 458, 467 (1994). The Court cautioned that,
The Rule, however, is to be employed sparingly. "[T]he potential prejudicial impact upon the integrity of the jury deliberation process would mandate that the rule be invoked only as a last resort mechanism to avoid the deplorable waste of time, effort and money inherent in a mistrial." State v. Lipsky, 164 N.J. Super. 39, 43, 395 A.2d 555 (App. Div. 1978).