STATE OF NEW JERSEY v. ROY W. HERMALYN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2700-07T4
A-4003-07T4A-2700-07T4

A-4003-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ROY W. HERMALYN,

Defendant-Appellant.

____________________________________

 

Argued December 15, 2008 - Decided

Before Judges Sabatino and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment Nos. S-1109-05 and S-2058-06.

Mary Gibbons Whipple argued the cause for appellant (Arseneault, Whipple, Farmer, Fassett & Azzarello, LLP, and Brickfield & Donohue, attorneys; Ms. Whipple, on the brief).

John J. Scaliti, Bergen County Senior Assistant Prosecutor, argued the cause for respondent (John L. Molinelli, Bergen County Prosecutor, attorney; Mr. Scaliti, of counsel and on the brief).

PER CURIAM

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.

I.

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. 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.

[(Emphasis added).]

The judge then queried:

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.

[(Emphasis added).]

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.

[(Emphasis added).]

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.

[(Emphasis added).]

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 identified as other jurors who may have overheard the sheriff's officer's comments.

Pursuant to that initial remand order, the trial judge conducted an additional hearing. During that hearing, the judge heard from Juror No. 1, who testified that he had not communicated with anyone outside of the jury regarding the deliberations. Juror No. 1 specifically recalled that he never heard any conversation involving the sheriff's officer and a hung jury.

Juror No. 1 then testified:

A. I remember [the officer] peeking [in] - and again, it may have been the day with the - I think it was the water issue, that may have been that day. Again, I don't remember specifically. He may have been asked about that.

Q. Okay.

A. I'm trying to remember.

Q. Okay. What do you remember him being asked? - - about unanimous verdict.

A. I'm trying to remember specifically if he was - if he - I mean, one of the jurors, and I don't remember who, it may have been just asked if we need to reach a unanimous decision. And he said - he did say - I don't remember - it's been awhile so I'm trying to think back.

Q. All right, take your time.

(Short pause in dialogue).

A. I'm not sure - I don't really recall what he said. I don't believe he, you know, misled us in any way or anything like that. He may have said to reach a decision, everybody has to be unanimous. I think it was something to that effect.

A. Or on each count there needs - everybody has to agree unanimously. I think something to that effect.

Q. On each of the counts.

A. Um - I don't recall if he said on each count. I do remember him saying that - to - to have a verdict on a count, there needs to be a unanimous decision between everybody.

Q. Okay. And so you recall which juror asked him that question?

A. No -

Q. Okay.

A. -- I don't.

Q. -- and you heard the answer.

A. Heard his answer?

Q. Yes.

A. Something to that effect like I just said, yes.

Q. And this - was this after Juror No. 3 had raised the issue of the hung jury.

A. Actually -

Q. Or made the observation.

A. - it may have been the same time when he brought that up.

Q. All right.

A. Now that I recall.

Q. Juror No. 3 had - had raised the question as maybe some of these counts, maybe they are - hung jury (phonetic).

A. No. I don't - I don't think it came up that way. I just - again, I think it was a matter of a time frame of how long, if we can't reach a decision, would there be a hung jury. I think it was something to that effect.

Q. And then after that, or during that time [the] [o]fficer - as - as you recall, was asked by some juror - a question about whether it had to be unanimous on each count.

A. I don't know - again, I don't know if it was specifically each count or it just needed to be unanimous per count or you know, unanimous vote to have a verdict. Again, I don't know spe- exact [sic] words, but something to that effect.

Q. And you recall him saying that it does have to be unanimous on each - - on the court to have - -

A. Well, I think he said to have a decision or to have a verdict, there needs to be - there needs to be a unanimous decision amongst all the jurors.

. . . .

Q. Okay, so Juror No. 3 asked about a hung jury.

A. I believe it was him. . . .

Q. And what do you recall []?

A. I think [the officer] said something like, you know, it's way too early to worry about a hung jury.

. . . .

Q. Well, my point is, your verdict wasn't issued until after the conversation with [the] [o]fficer.

A. Correct.

[(Emphasis added).]

After further discussion and argument, the trial judge agreed to continue the hearing the following day. At that time the court considered testimony from Juror No. 3, the juror who allegedly had first raised the hung jury issue with the sheriff's officer.

The next day, Juror No. 3 testified, in pertinent part, as follows:

Q. And do you recall that right after that luncheon break that the [sheriff's] [o]fficer had I guess stuck his head in the doorway or stood at the doorway and he was asked questions by one or two jurors about whether or not the verdict had to be announced.

A. Yes, I do remember that.

Q. Okay. Tell the [c]ourt what you remember about that.

A. I just remember the jury asking him about that, but I don't remember exactly what his answer was.

Q. Who asked him the question?

A. The representatives - I give him name as I think [Juror No. 8]. I believe she was the one who kind of wrote the question o[n] a piece of paper and asked.

Q. And do you believe she's the one that asked [the] [o]fficer or you don't know who asked [the] [o]fficer?

A. I think she handed somebody a paper. She's the one who wrote the question down but - -

Q. What was the question?

A. Does the verdict have to be unanimous on all counts. That was one of the questions I believe, yeah.

Q. Was that - to your knowledge, was that note ever given to the judge?

A. I don't know if it was given to the judge, it was just handed to I believe him or some other -

Q. And what did [the] [o]fficer do when he got that?

A. That I don't - I don't really recollect that because I think even though we - the purpose of that question was to confirm that what all of the jurors believed that was the case, so we didn't - I don't remember if he actually got [a] decisive answer on that but it was all understood that we did have to vote unanimously on all counts.

Q. Okay. So you do recall [the] [o]fficer telling the jury that it had to be unanimous on all counts?

A. I don't recall him - I don't remember him saying - I'm not saying whether he did or not. I just don't remember him saying that.

Q. Well, do you recall he was asked that question by - He was given a note -

Q. Right.

A. - - with that question on it.

[(Emphasis added).]

Juror No. 3 then clarified that a communication had, in fact, been made to the sheriff's officer concerning jury unanimity, and that the inquiry had been answered by the officer.

A. Yes. At that point it was confirmed. But again, before that we were like a 99 percent sure, but not a hundred percent sure.

Q. But it was confirmed by the communication from the court officer, correct?

A. Correct.

[(Emphasis added).]

Following Juror No. 3's testimony, defendant renewed his application for an order setting aside the verdict. Again, the trial judge denied the motion, discerning no taint of the deliberations to warrant such relief.

Defendant then moved to this court for a second remand to permit additional testimony. We granted that motion, and specifically instructed the trial judge to interview Juror No. 8 and to re-interview Juror No. 3 as to the assertion that Juror No. 8 had written a note for the judge concerning unanimity. The second remand hearing took place on May 13, 2008, at which time the trial court entertained testimony from Juror No. 8 and took additional testimony from Juror No. 3. Similar to Juror No. 1, Juror No. 8 did not remember whether the sheriff's officer had made any comments regarding a hung jury. In fact, she stated, "I'm embarrassed, I don't recall. I'm so sorry. I don't recall, but I know the subject came up." She did, however, believe that the jury did not receive any outside influences during the deliberation process and that the verdict was fair and impartial.

During Juror No. 3's resumed testimony, he again indicated that he thought someone had written a note about unanimity, but that he was not positive about whether that was the topic the note concerned. He did state that he saw a note get handed to someone outside of the jury room who was not a juror.

At the end of Juror No. 3's testimony, defendant again moved to set aside the conviction. Once again, the trial judge denied the request. The judge concluded that the sheriff's officer's statements to the jurors "in no way . . . affected in this case the essentials of this jury deliberating this case to a fair and impartial verdict." The judge also found inconsequential that Juror No. 6 had apparently "traded off" a guilty vote on count twenty-six for a not guilty vote on another count.

This appeal ensued.

II.

Each time that a sheriff's officer or other court employee is assigned to attend to a jury, he or she takes an oath. That oath is set forth in a statute, N.J.S.A. 2B:23-7. The oath reads:

"Do you swear or affirm that you will do your best to keep every person sworn on this jury together in a private place, and that you will not allow any person to speak to them, nor speak to them yourself, except by order of the court, and except to ask them if they have agreed on a verdict, until they have so agreed?"

[N.J.S.A. 2B:23-7 (emphasis added).]

Significantly, the oath prohibits the officer from speaking to the jurors himself or herself, unless authorized by the trial judge to do so, "except to ask them if they have agreed on a verdict." The obvious purpose of the statutory oath is to assure that the court officer entrusted with safeguarding the jury does not inject any personal views into the jury's sacrosanct deliberations.

The danger of a court officer's statements or conduct influencing a jury's deliberation is real and not fanciful. An apt illustration of that risk is provided in Weiler, supra, 211 N.J. Super. at 602. In that criminal case, the sheriff's officer conveyed to the deliberating jurors that he personally felt that defendant was guilty. Id. at 607-09. We held that the officer's interjection of his personal beliefs in Weiler constituted improper influence of the jurors and required a new trial. Id. at 612.

Similarly, in Kavanaugh v. Quigley, 63 N.J. Super. 153 (App. Div. 1960), the assigned bailiff failed to pass onto the judge a request from the jury that they desired further instructions on the law. Id. at 156. Instead, the bailiff allegedly told the jurors that "they had to bring in a verdict one way or another." Ibid. Given those circumstances, we held that the bailiff's misconduct required a new trial and was not, as the trial judge in Kavanaugh had treated it, an inconsequential error. Ibid.

We made the following observations in Kavanaugh about the respective functions of the judge, jury, and the court officer:

The delicate nature of the relationship between the judge and the jury throughout the trial, particularly during the deliberations of the jury, needs scarcely be expounded. At all times it is a substantial part of the judicial duty to give all possible assistance to the jury in the aid of full discharge of its sworn duty, and during the deliberation stage the rendering of such aid upon request and ultimately receiving the jury's verdict become the sole remaining duties of the judge. See R.R. 4:40-4.

So it is that the failure of the bailiff to inform the judge that the jury found itself in need of the services which he alone was empowered to perform severed the life line of communication between the jury and the judge. As a result the jury was deprived of the help to which it was entitled and the judge was prevented from fulfilling his duty to respond to the jury in open court, consider the nature of its problem, and guide it accordingly. The imperative necessity of maintaining unfettered collaboration of the judge and jury, both acting within their respective spheres to the end that an informed verdict intelligently arrived at be returned, precludes our regarding the bailiff's omission to carry the jury's message to the judge as a non-prejudicial infraction of an administrative court procedure.

[Id. at 160-61 (emphasis added).]

These observations are equally germane to the present case. The "life line of communication between the jury and the judge," id. at 161, requires a sheriff's officer to alert the court without delay or hesitation if the jurors are seeking guidance. "The only proper course open to the bailiff upon being told that the jury desired 'information' from the judge was to close the door of the jury room and immediately convey the request to the trial judge." Id. at 159.

Where, as here, it is revealed that a court officer has failed to discharge his or her duty respecting the jurors, a litigant does not need to show that the officer's improper conduct actually prejudiced the deliberations. Instead, it only is necessary to show that the officer's improper behavior had the "capacity" to taint the deliberations. Id. at 159. As we noted in State v. Sachs, 69 N.J. Super. 566, 588 (App. Div. 1961), "[t]he standard to be applied in such cases is whether the irregular act had the capacity to influence the result, not whether influence in fact resulted." (Emphasis in original).

This standard, expressed in the cited cases involving the conduct of court officers, parallels the general standard for assessing the harmfulness of extraneous matters outside of the record being conveyed to jurors during the course of their deliberations. See, e.g, Panko, supra, 7 N.J. at 61 ("[t]he test is not whether the irregular matter actually influenced the result, but whether it had the capacity of doing so."); see also State v. R.D., 169 N.J. 551, 559 (2001) (same). "The stringency of this rule is grounded upon the necessity of keeping the administration of justice pure and free from all suspicion of corruptive practices." Panko, supra, 7 N.J. at 61.

In the present case, the State acknowledges that the sheriff's officer should not have commented to the jurors about whether it was "way too early" for them to be concerned about a hung jury. The officer also should not have taken it upon himself to repeat the definition of a legal verdict for the jury. Although it is correct that a verdict in a criminal case must be unanimous to be valid, see State v. Frisby, 174 N.J. 583, 596 (2002), that proposition is qualified by the additional principle that a jury that finds itself unable to reach such a unanimous verdict will be declared a hung jury, and the matter may be tried anew. State v. Czachor, 82 N.J. 392, 404 (1980). These legal principles should have been explained to the jurors only by the trial judge, not by the sheriff's officer.

The officer's failure to involve the judge in the jurors' uncertainty about a hung jury also deprived the jurors of the specific model instruction that a court may deliver when it appears that jurors may be deadlocked. See Model Jury Charges (Criminal) - Further Jury Deliberations (approved May 23, 1999). If such a request had been promptly conveyed to the trial judge, the jurors could have heard the judge advise them the following:

It is your duty, as jurors, to consult with one another and to deliberate with a view to reaching an agreement, if you can do so without violence to individual judgment. Each of you must decide the case for yourself, but do so only after an impartial consideration of the evidence with your fellow jurors. In the course of your deliberations, do not hesitate to re-examine your own views and change your opinion if convinced it is erroneous but do not surrender your honest conviction as to the weight or effect of evidence solely because of the opinion of your fellow jurors, or for the mere purpose of returning a verdict. Your are not partisans. You are judges--judges of the facts.

[Id. (emphasis added).]

In this case, Juror No. 6, and perhaps other jurors, misunderstood these fundamental principles about the permissibility of a hung jury because of the sheriff's officer's improvident comments.

We do not, by any means, conclude or even suggest that the sheriff's officer in this case deliberately attempted to interfere with the jurors' functions, or that he acted with any untoward motives. Indeed, the testimony adduced in the post-trial hearings suggests that the officer's behavior was probably well-intentioned. Even so, the officer's failure to obtain the assistance of the court, however innocent that failure may have been, cannot be presumed to be inconsequential, particularly in light of the testimony of Juror No. 6 and several of the other jurors who were interviewed.

We part company with the trial judge in his conclusion that the officer's statements to the jurors and the officer's failure to communicate their inquiries to the court about a hung jury did not make a difference. To the contrary, we are satisfied that the officer's mishandling of the matter clearly had the "capacity" to influence the final verdict. Panko, supra, 7 N.J. at 61. The necessary remedy is a retrial. Because our reading of the transcribed interviews with the five jurors does not give us assurance that the potential taint was limited to count twenty-six, the other three convictions on counts one, two, and twenty-three are likewise vacated. A new trial shall be conducted as to all four counts.

Vacated and remanded for a new trial, consistent with this opinion.

 

Defendant was completely exonerated as to all charges concerning E.P., and on most of the specific accusations concerning J.P. and J.G.

For reasons that are unclear, defendant's appeal was administratively assigned two separate docket numbers. We consolidate the docket numbers for purposes of this opinion.

(continued)

(continued)

22

A-2700-07T4 & A-4003-07T4

RECORD IMPOUNDED

January 9, 2009