On appeal from Superior Court of New Jersey, Law Division, Salem County, Indictment No. 07-10-0520.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes and Newman.
Defendant David U. Bell was tried before a jury and convicted of third degree aggravated assault against a county corrections officer.*fn1 The victim of the assault was a corrections officer at the Salem County Correctional Facility where defendant was being detained at the time for an unrelated matter. The trial court granted the State's motion seeking an extended term pursuant to N.J.S.A. 2C:43-2, and sentenced defendant to a term of seven years.
We now reverse defendant's conviction and remand the matter for a new trial. The trial court's extensive remarks, in direct response to the foreperson's statement that the jury was deadlocked, unduly promoted unanimity over dissent and impermissibly focused attention on the dissenting juror. Under these circumstances, the judge's comments had the capacity of being perceived as coercive, thus undermining the independence of the deliberative process.
We will address this issue in the context of the following facts, which we have derived from the record developed before the trial court.
On August 16, 2007, defendant was arrested on an outstanding warrant for failure to pay child support and was brought to the Salem County Correctional Facility. Based on the answers he gave in an initial commitment interview, the "booking officer" determined that defendant met the criteria for possible suicidal tendencies. Defendant was thus placed in the infirmary on "suicide watch."
According to Investigator Robert Stussey of the Salem County Sheriff's Department, inmates on "suicide watch" are confined to individual cells; required to remove their clothing; searched to ensure that they are not harboring anything that might be used to harm themselves; and made to wear a "suicide gown."*fn2 The corrections officers assigned to this unit monitor these inmates through a series of rounds made every fifteen minutes. Individuals confined under these conditions are segregated from the rest of the inmate population until a psychologist or psychiatrist determines that they are no longer at risk. This usually takes approximately three days.
The incident that gave rise to this criminal charge occurred when corrections officers attempted to escort defendant to his cell. Corrections Officer Jeffrey Thomas Hoglen is a member of the "Response Team," a specialized group of officers dispatched by the correctional facility when there are problems with inmates.
On the date in question, Hoglen testified that the "booking patrol" called the Response Team "[t]o escort Mr. Bell to the infirmary." A total of six officers responded to the call. Hoglen and his fellow officers were to "assist" defendant in putting on the suicide gown. According to Hoglen, defendant was initially uncooperative, "hollering" and cursing at the officers. He then appeared resigned to his fate; defendant complied with the officers' request and voluntarily walked toward the infirmary.
The situation escalated into a physical confrontation when defendant reached the infirmary and was told to put on the suicide gown. Hoglen testified that when he approached defendant with the gown, defendant said: "We might as well go down now, meaning fight." Defendant also hollered at two other officers, who responded by putting defendant against the wall and handcuffing him. Unfortunately, the matter did not end there.
When defendant reached his cell, the officers asked him to kneel on the bed in order to remove his clothing and put on the gown. Hoglen gave the following description of what occurred next:
We laid him down on the bunk and I . . . proceeded to take his trousers off and boxers off and then we were going to put the gown on him.
Once we got . . . his pants off, before we can grab his legs again, Mr. Bell threw his right leg back around and kicked me underneath the chin and throat area. PROSECUTOR: Okay. And what was your reaction to that?
A. It stunned me. It knocked me back two or three steps, and I kind of lost my balance. I stood there for a couple minutes, got myself back under control and proceeded to help [the other officers] again.
PROSECUTOR: Okay. . . and when that occurred, . . . his face was ...