On appeal from the Superior Court of New Jersey, Law Division, Camden County, 3319-09-02.
The opinion of the court was delivered by: Lintner, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lintner, Parrillo and Holston, Jr.
Defendant, Darryl Miller, appeals from a judgment entered by the trial judge convicting him of the lesser-included disorderly persons offense of simple assault, N.J.S.A. 2C:12-1a, after the jury acquitted him on the indictable offenses and then was excused as deadlocked on the lesser-included disorderly persons offense. We reverse the judgment of conviction and remand for new trial.
We combine the procedural history and relevant facts. On February 1, 2002, defendant, a sergeant in the Camden Police Department, went to the home of Tina Edwards, his estranged girlfriend and the mother of his child, to visit the child and pay child support. At the time, Alkeena Wright and her daughter were visiting Edwards so that their daughters could play. When defendant arrived, he picked up his daughter, changed her diaper, and then asked Edwards if he could talk to her privately in the bedroom. Defendant was concerned about Edwards' relationship with Christopher Pugh, who defendant knew had a criminal record. Pugh had helped Edwards purchase a minivan by allowing title to be placed in his name even though she had paid for it.
After approximately five minutes, Wright heard Edwards scream, "get off of me" and "Alkeena, help." She also heard defendant holler, "Why you having my daughter around another man?" Alkeena entered the room and observed defendant straddling Edwards on the bed with his knees near her shoulders. She saw defendant hit Edwards "a couple of times" with an open hand. Wright told defendant to stop and he eventually left the bedroom and the apartment. Before leaving the apartment, defendant took keys to both the apartment and minivan. Wright saw defendant outside retrieving a piece of paper from the van and then heard him trying to turn the doorknob to the apartment. Edwards called the police. When the police arrived, both Wright and Edwards told them what had occurred. Edwards was taken to West Jersey Hospital where she was treated for facial and chest wall contusions and a superficial head injury. A videotape taken a day or two later by Pugh showed Edwards had developed a black eye and facial scratches.
On May 29, 2002, Edwards gave a taped statement to defense counsel, stating that she had lied to the police. Similarly, she explained to the Grand Jury that she had lied to Wright, Pugh, the police, and the hospital. She testified at trial that after she entered the bedroom an argument ensued and she attempted to strike defendant. She claimed that he grabbed her hands to calm her down and lost his balance, causing his head to strike her face as they both fell onto the bed. Defendant testified consistently with Edwards' recanted version. When defendant questioned Edwards about Pugh and the minivan, she suggested, "If you don't believe me Darryl, go downstairs and check the vehicle." After doing so, defendant returned to the apartment, knocked on the door, but left when he received no response. That night, at his supervisor's request, defendant went to headquarters where he was placed under arrest and charged. In addition to testifying, defendant presented several character witnesses on his behalf.
On September 25, 2002, a Camden County Grand Jury returned Indictment No. 3319-09-02, charging defendant with third-degree aggravated assault, N.J.S.A. 2C:12-1b(7), and third-degree attempted burglary, N.J.S.A. 2C:5-1 and 2C:18-2. The trial commenced on January 27, 2004, and was tried over a period of three days. At the conclusion of the evidence, the parties agreed that the trial judge would charge the jury on the lesser-included disorderly persons offense of simple assault, N.J.S.A. 2C:12-1a. The judge also granted defendant's request to instruct the jury on the petty disorderly persons offense of mutual fighting, if the jury returned a guilty verdict on simple assault, N.J.S.A. 2C:12-1a.
The jury began its deliberations on January 29, 2004, at 2:35 p.m. At 3:06 p.m., the jury sent a note asking whether it could have a copy of Wright's testimony and if there was any other evidence for it to examine. The judge explained that she could have Wright's testimony read back but suggested that the jury first consider whether there was any particular portion with which it was concerned. She also advised that there was no other tangible evidence for them to examine. At 3:48 p.m., the jury sought "Wright's testimony, all references about [Edwards] being struck. During direct, one or two blows, but during cross she didn't actually see." With the agreement of counsel, the judge instructed the court reporter to read back Wright's testimony as to everything she heard and saw until defendant left the apartment.
The jury resumed its deliberations at 9:20 a.m. the next day. At 12:23 p.m., the jury requested another read-back and the judge complied. Deliberations resumed at 1:02 p.m. At 2:47 p.m., the jury reported, in response to the judge's inquiry, that it had reached a verdict of not guilty on the charge of aggravated assault but could not reach an agreement on simple assault. The judge, with the consent of counsel, gave the jury a modified Czachor*fn1 charge. The jury resumed its deliberations at 3:03 p.m. and at 3:25 p.m. reported, "Almost immediately today, the jury reached two verdicts on the aggravated assault and the attempted burglary. For the past four-and-a half hours, we have deliberated on the simple assault charge, but we cannot reach a unanimous verdict."
The judge suggested to counsel that it was her belief that the jury should be considered "deadlocked on the simple assault" and they should take its verdict. Both parties agreed with the judge's assessment. The judge took and accepted the verdicts of acquittal on aggravated assault and attempted burglary and discharged the jury. One juror then asked what was going to happen with the simple assault charge and the judge advised that she would ask for briefs from counsel as to whether she should sit as the finder of fact and decide the simple assault charge or whether it should be remanded to be heard in municipal court.
The State moved to have the trial judge be the fact finder on the simple assault charge. Defendant countered, asserting that the matter should be remanded to municipal court and arguing that he would have tried the case differently had he known that a judge would be the trier of fact. On March 5, 2004, prior to oral argument on the motion, the judge acknowledged that the jury was deadlocked and that she had declared a mistrial. Relying on R. 1:1-2 and R. 3:15-3, the judge granted the State's motion to have her sit as the fact finder, concluding that it "promotes efficiency of adjudication and fairness to both sides." She also determined that defendant would not be prejudiced because she would be prepared to render a verdict without consideration of defendant's testimony if she were asked to do so and there was "no other demonstrable way in which the case would have been tried differently had the defense known that it would be ultimately a bench trial rather ...