On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment Nos. S-1109-05 and S-2058-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Sabatino and Simonelli.
Following a lengthy trial, defendant Roy W. Hermalyn was found guilty by a jury in November 2007 of four counts of a twenty-seven-count indictment. The day after the verdict, a juror came forward and reported that a sheriff's officer had made comments during the jury's deliberations, which had incorrectly led her to believe that the court would not allow the jury to be hung. The juror maintained that had she known that a hung jury was a permissible option, she would have acquitted defendant on at least one of the four counts.
Subsequently, the officer's comments to the jurors, which the State concedes were improper, were confirmed in post-verdict evidentiary hearings.
Because the improper comments by the sheriff's officer had the manifest capacity to influence and mislead one or more of the deliberating jurors, see Panko v. Flintkote Co., 7 N.J. 55, 66 (1951) and State v. Weiler, 211 N.J. Super. 602, 609-12 (App. Div. 1986), we vacate defendant's convictions and remand for a new trial.
In June 2005, defendant, an employee of Bergen County, was indicted by a grand jury on eighteen counts of sexual misconduct. Thereafter, in November 2006, a grand jury issued a superseding indictment of defendant on twenty-seven counts, including official misconduct, N.J.S.A. 2C:30-2; endangering the welfare of a child, N.J.S.A. 2C:24-4(a); and sexual assault, N.J.S.A. 2C:14-3(b). The charges stemmed from defendant's alleged improper touching of three minors, J.P., E.P., and J.G., on various dates.
After a seven-week trial, on November 27, 2007, a jury found defendant guilty of two counts of official misconduct under N.J.S.A. 2C:30-2 (count one as to J.P and count twenty-three as to J.G.); one count of endangering the welfare of J.P. under N.J.S.A. 2C:24-4(a) (count two); and one count of sexual contact of J.G. under N.J.S.A. 2C:14-3(b) (count twenty-six).
The jury acquitted the defendant on the remaining twenty-three counts.*fn1 Count twenty-six, as set forth on the verdict sheet, specifically charged defendant with "criminal sexual conduct by force by touching [J.G.'s] chest."
One day later, on November 28, Juror No. 6 from the trial spontaneously appeared at the law offices of defendant's trial attorney, Joseph Rem. The juror claimed to be seeking representation on an unrelated employment matter. Rem apparently informed Juror No. 6 that he did not handle employment cases, but that he could refer her to another lawyer.
During that meeting, however, Juror No. 6 initiated a discussion of defendant's case. She told Rem that she would have "hung the jury" but for comments of the assigned sheriff's officer that the jury "had to be unanimous."
The next day, Rem and defendant's co-counsel, Paul Brickfield, notified the trial judge of the juror's report. That same day, November 29, the judge held a conference in chambers and then conducted a hearing. The judge cautioned that he did not want the other jurors aware of the situation while Juror No. 6's allegations were being reviewed.
The following day, November 30, the trial judge heard testimony regarding Juror No. 6's conversation with Rem. Juror No. 6 recounted the circumstances that had led to her coming to Rem's office. She described her misgivings about the final verdict. She specifically stated that "of the counts that we had found him guilty of, that if I could've hung on one of them, that [sic] I would've." She further told the court that she would have delivered a "hung jury" on count twenty-six (fourth-degree criminal sexual contact of J.G.) because she did not think that defendant engaged in touching J.G.'s chest. Juror No. 6 specifically recalled that the sheriff's officer had told the jurors during deliberations that they "weren't allowed to hang. We had to pick one or the other. We had to agree, innocent or guilty." She added that there were questions about the entire process "because there was a couple of misunderstandings, you know, finding guilty or innocent, if it had to be the whole thing, if it was each individual count.
There was some people who did not understand that."
Juror No. 6 then elaborated:
I felt, not by any specific person, that I needed to make up my mind, because I was under the understanding I wasn't allowed to hang on one [count], so I needed to come up with an answer. So I did. It wasn't necessarily a specific person, it was everybody and me.
Q: Everybody and-you in reference to which-count?
A: The thigh [of J.G.]. It was the thigh [issue] at the time. Juror No. 6 testified that she eventually made up her mind to vote that the defendant was not guilty of touching J.G.'s inner thigh (count twenty-seven), but vote that he was guilty of touching J.G.'s chest (count twenty-six). She indicated that she was not certain that defendant was actually guilty of touching the minor's chest, but had voted guilty because she "thought" she "had to, because everybody else did." She added:
I wasn't allowed to hang, so it really--what it came down to is I had to pick, which is hard, one or the other. I picked what I thought would be the lesser of the two.
Following Juror No. 6's testimony, the trial judge heard the sheriff's officer testify. The officer stated, under questioning from the court:
Q: Did you have any conversation with any of the jurors about whether their verdict had to be unanimous as to each count?
A: Early on in the trial, they asked me does it have to be unanimous or could it be-I said, first of all you have to write it on paper and give it to me so I can give it to the judge. But it has to be unanimous.
Q: Somebody asked you that? Do you remember who?
A: Judge, they were a very vociferous jury. And I couldn't tell which one it was. I can't recall who it was.
Q: Okay. That was during the trial or during deliberations?
A: It was early on in deliberations.
Q: Did you have any conversation with any of them concerning the fact that each count had to be voted on separately?
A: Earlier on, that I mentioned before, they were questioning me in reference to all have to be unanimous, and I said, yes I do. And again, I repeat, you have to write a note. I can't answer your questions.
A: Early in the deliberations they opened the door, as they did quite frequently even though I told them not do...
[t]hey opened the door, and I just heard yelling. I said, folks, calm down. What you have to do is write me a note on what questions you have. And they just does it have to be a unanimous decision or can we, on this count-I said, folks, it's got to be unanimous, please write me a note. I can't answer your questions. That was it.
During cross-examination defense counsel elicited from the sheriff's officer that the incident with Juror No. 6 occurred on Monday, November 26. That was one day before the jury delivered its verdict. The officer further responded to defense counsel:
A: [The] [j]udge [had] said unanimous decisions on each count. They wanted me to say, oh 19, does it have to be--does it have to be--what about there's 27 counts here, what do we have to do? Does number two have to all together. Does number four? I said it has to be unanimous and you have to give me a note. That's all I said.
After Juror No. 6 and the officer testified, defense counsel orally moved to set aside the verdict. Counsel also requested that, in the event that the court was not inclined to grant such relief, he be given the opportunity to elicit testimony from other jury members. The court initially denied the request, finding that the testimony from the two witnesses did not alter the validity of the verdict. On December 4, 2007, the court entered an order memorializing its November 30 bench ruling.
Subsequently, defendant filed an appeal with this court. He then filed a motion seeking a remand for the continuation of the hearing before the trial judge. We granted that motion on January 30, 2008. Our remand order specifically directed the trial judge to entertain testimony from Jurors No. 1 and No. 10, who had been ...