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DOCKET NO. A-3427-04T43427-04T4








Submitted March 14, 2006 - Decided May 15, 2006

Before Judges Axelrad and Sabatino.

On appeal from the Superior Court of New Jersey, Law Division, Warren County, Indictment No. 03-04-0133.

Yvonne Smith Segars, Public Defender, attorney for appellant (William Welaj, Designated Counsel, of counsel and on the brief).

Thomas S. Ferguson, Warren County Prosecutor, attorney for respondent (Tara J. Kirkendall, Assistant Prosecutor, of counsel and on the brief).


After a one-day bench trial in December 2004, appellant Tyrone Henry was convicted of third-degree aggravated assault, in violation of N.J.S.A. 2C:12-1b(7). Three other counts of the indictment charging defendant with various drug-related offenses were dismissed. The trial judge sentenced appellant to a five-year prison term.

On appeal, defendant principally contends that he was deprived of his constitutional right to a jury trial, without sufficient inquiry being made of him and his counsel before the court accepted his oral request for a bench trial on the first morning of trial. We agree, and remand for a plenary hearing on the voluntariness of, and the reasons for, defendant's attempted waiver of his constitutional right to a jury.


The legal issues before us arise out of an encounter between defendant and his female acquaintance, Heather Hanson, on December 20, 2002 in Phillipsburg, New Jersey. Hanson and her son lived in an apartment in Phillipsburg, where defendant at times would sleep over. Hanson and defendant had dinner together that evening. After dinner they had an argument because defendant, who had been drinking that day, wanted to go out and drive Hanson's car. Hanson opposed defendant's request, causing him to become upset and leave Hanson's apartment.

After leaving the apartment, defendant repeatedly called Hanson's home and cell phones, calls which she did not answer because she allegedly was on pain medication and did not hear the phones ring. Defendant decided to return to the apartment.

Defendant returned to Hanson's apartment in the early morning hours on December 21. By that time, Hanson was in her bedroom asleep, as was Hanson's son who was in his own bedroom. Jameel Stevens, a mutual friend of defendant and Hanson, was also present in the apartment. Defendant and Hanson argued in her bedroom about her failure to answer his calls, prompting defendant to grab her cell phone. The parties struggled over possession of the phone, and it broke. Hanson left her bedroom and asked Stevens if he could repair her phone. Stevens told her that he could not fix it. Hanson returned to her bedroom.

The accounts of the trial witnesses substantially vary at this point. Hanson contends that, without provocation, defendant struck her in the face when she returned to the bedroom. Defendant contends that Hanson was the aggressor, "stunning" him with a punch in the face and continuing to throw "wild punches." Defendant alleges that in the course of trying to block Hanson's punches, he swung his right arm and caught Hanson with it in the face, causing her to fall to the floor face down. Defendant further claimed that he helped Hanson off the floor and assisted her into the bathroom. Hanson lost consciousness for a short period of time, and awoke on the bathroom floor with blood on her face.

The police soon arrived and arrested defendant, who had remained at the scene. Hanson was taken to a local hospital, where she was treated for a broken nose and contusions around her eye. Neither Hanson nor defendant sustained any medically-documented injuries to their hands.

Defendant was subsequently indicted for aggravated assault and also for various other offenses. Defendant did not deny striking Hanson, but contended that he had acted in self-defense. During pre-trial motions, the trial judge dismissed all charges against defendant except the count for aggravated assault.

At the trial the judge heard the competing accounts of this incident from Hanson and defendant. He also considered testimony from two police officers who had responded to the scene, a police lieutenant who had assisted Hanson in filling out a domestic violence affidavit, an emergency room physician who had treated Hanson, and Hanson's father who had observed her facial bruises and swelling a few days after the altercation. Neither Jameel Stevens nor Hanson's son, both of whom had been in the apartment during the altercation, testified.

Upon considering the proofs and the summations of counsel, the trial judge concluded that Hanson's account of the events was more credible than defendant's. The judge found that Hanson's facial injuries had not been caused by a misplaced elbow from defendant, but rather by a conscious and direct blow between the eyes with defendant's fist. Based upon those factual findings, the court determined beyond a reasonable doubt that defendant was guilty of third-degree aggravated assault, having inflicted "his intentional assault showing clearly significant bodily injury" to defendant, as reflected in the photographs of her face presented as part of the State's evidence.

At sentencing the court imposed a five-year prison term, in excess of the four-year presumptive term for a third-degree offense. The court recognized several aggravating factors, including defendant's extensive prior criminal history. The court also rejected defendant's contention that his willingness to compensate Hanson for her injuries, his status as a father of two children, and his alleged physical and emotional abuse as a child were mitigating factors justifying a lesser sentence.

On appeal, defendant raises the following issues:









For reasons that we explain, infra, we address only the first two points, as it is unnecessary at this time to consider defendant's sentencing-based arguments.


Preliminarily, we address defendant's argument that the trial judge lacked sufficient good cause to grant the prosecutor's motion to extend defendant's detainer from the State of Pennsylvania in order to accommodate his trial in New Jersey, and instead should have dismissed the New Jersey indictment for lack of timely prosecution. We find this claim unavailing, as the trial judge had more than sufficient cause to extend defendant's detainer, given the practical circumstances that confronted him when the State moved for the extension.

By way of pertinent background on this issue, defendant was arrested in New Jersey on December 21, 2002 for the subject assault, and was released on bail shortly thereafter. While on bail, defendant was arrested in Pennsylvania for narcotics offenses. He was convicted of those offenses, received a two-to-four-year sentence, and began serving that sentence in a Pennsylvania penal facility.

In June 2004, defendant was transported from Pennsylvania to the Warren County Jail, pursuant to the Interstate Agreement on Detainers ("IAD"), which is codified in New Jersey at N.J.S.A. 2A:159a-4. The purpose of the detainer system and the IAD is to alleviate the burdens and uncertanties that prisoners sustain when they are transported to other jurisdictions where they face criminal prosecution. Accordingly, the IAD establishes a goal that the receiving State will complete its proceedings within 120 days of the out-of-state prisoner's arrival. N.J.S.A. 2A:159a-4(c). However, upon "good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance." Ibid.; see also State v. Millett, 272 N.J. Super. 68 (App. Div. 1994) (sustaining prosecution's request to extend 120-day period for trial in order to enable the potential testimony of two late-identified witnesses).

Here, the State moved to extend defendant's detainer from Pennsylvania three days before it was scheduled to expire. The State based its application on a variety of justifications, including the recent designation of new trial counsel for defendant in mid-August 2004; the completion of a suppression hearing in September 2004 which resulted the court ruling against the State on October 8, 2004, and for which the time for the State to seek interlocutory review had not yet expired; and the unavailability of feasible trial dates on the court's calendar until after the Thanksgiving court recess. We collectively regard those justifications as sufficient good cause for defendant's detainer to have been extended for a modest period to accommodate the trial which was held on December 13, 2004.

Viewing the chronology here in its totality, we do not believe that the State demonstrated a lack of diligence in failing to proceed with defendant's trial during the presumptive 120-day period under the IAD. See State v. Millett, supra, 272 N.J. Super. at 107 (observing that a prosecutor's dilatory conduct will not qualify as "good cause" for a detainer extension under the IAD); see also State v. Lippolis, 55 N.J. 354 (1970) (same); State v. Johnson, 188 N.J. Super. 416, 422 (App. Div. 1980), certif. denied, 93 N.J. 282 (1983) (same). To the contrary, a good portion of the delay here is attributable to the defense.

Defendant's initial counsel failed to file any dispositive motions by a case management deadline of August 12, 2004. However, at a second status conference conducted on August 12, 2004, defendant's new attorney appeared and indicated that she wished to file a suppression motion. When a hearing on that suppression motion commenced on September 22, 2004, the new defense attorney advised the court that the previous attorney who had been representing defendant had done "minimal" work on the file.

The suppression hearing took place over three non-consecutive days, culminating in an oral ruling by the court immediately after argument on October 8, 2004. Even though the State did not exercise its option to pursue leave to appeal that suppression ruling, we do not consider the State's failure to do so sufficient to eliminate the good cause for its prior motion to extend defendant's detainer. See State v. Millett, supra, 272 N.J. Super. at 107 (finding no dilatory motives by the State, despite its failure to call at trial the two witnesses whose late identification had prompted the detainer extension).

In the interests of justice and the orderly disposition of criminal trials, we do not believe that the judge was obligated to rush this case to trial before the detainer would run out on October 24, 2004 after ruling in the defense's favor on the suppression motion on October 8, 2004. Although the eventual bench trial only consumed one day, we affirm the trial judge's fair and practical decision to schedule the defendant's trial at the next realistic available slot in his criminal calendar rather than disrupt other proceedings that were already on his schedule.


Defendant's main argument on appeal concerns the sufficiency of the trial court's inquiry in granting his application to waive a jury trial. The entire colloquy on this request, which was raised extemporaneously at the very outset of the trial on December 13, 2004, was as follows:

THE COURT: State New Jersey versus Tyrone Henry. Today is the date for trial. Bring Mr. Henry up, please.

MS. JONES: Judge, could I approach for a minute with Mr. Janci?

THE COURT: Mr. Henry, good morning. For the record appearance of counsel, please.

MS. JONES: Rachelle Jones on behalf of Tyrone Henry.

MR. JANCI: James Janci on behalf of the State.

THE COURT: Mr. Henry, be seated, please. Attorney Jones, today was the day for trial and here we are and, please, place something on the record about waiving the jury.

MS. JONES: Judge, Mr. Henry has advised me that he wishes to waive his right to a jury trial and would like to proceed with a bench trial.

THE COURT: Mr. Henry, is that correct?

THE DEFENDANT: Yes, sir, your Honor.

THE COURT: You have a right to have this matter decided at a trial before a jury present or a judge. It's your choice. I just want to make sure it is your choice.


THE COURT: It is. Very well, okay.

The court then proceeded to entertain defense counsel's application to dismiss Count One of the indictment (charging aggravated assault), which it denied. The judge then heard counsel's openings, the testimony of seven witnesses, and summations. He concluded the day's proceedings with his oral decision, which was completed by 4:15 p.m., adjudging the defendant guilty.

The constitutional right of an accused to a trial by an impartial jury of his or her peers has long been enshrined in our jurisprudence. See U.S. Const., amend. VI; N.J. Const. (1947), art. I, 10; Duncan v. Louisiana, 391 U.S. 149, 149, 88 S. Ct. 1444, 20 L. Ed. 2d 491 (1968) (applying the Sixth Amendment's right to trial by jury to the states); State v. Dunne, 124 N.J. 303, 311-12 (1991) (tracing New Jersey's history affording criminal defendants a right to jury trials); State v. Stevens, 84 N.J.L. 561, 563 (Sup. Ct. 1913). The right is one that must be "jealously preserved." Patton v. United States, 281 U.S. 276, 312, 50 S. Ct. 253, 74 L. Ed. 854 (1930).

A criminal defendant may seek to waive a jury trial and consent to be tried by the court. However, the court does not have to accept such a requested waiver in all circumstances. As the United States Supreme Court declared in 1930 in its seminal opinion in Patton, supra:

Trial by jury is the normal and, with occasional exceptions, the preferable mode of disposing of issues of fact in criminal cases above the grade of petty offenses. In such cases the value and appropriateness of jury trial have been established by long experience, and are not . . to be denied.

. . . .

[T]he maintenance of jury as a fact-finding body in criminal cases is of such importance and has such a place in our traditions, that before any waiver can become effective, the consent of government counsel and the sanction of the court must be had, in addition to the express and intelligent consent of the defendant.

[Patton, supra, 281 U.S. at 312; 50 S. Ct. at 263, 74 L. Ed. at 870 (emphasis added).]

Patton further instructs that, in considering a defendant's application to waive trial by jury:

[T]he duty of the trial court in that regard is not to be discharged as a mere matter of rote, but with sound and advised discretion, with an eye to avoid unreasonable or undue departures from the mode of trial or from any of the essential elements thereof, and with a caution increasing in degree as the offenses dealt with increase in gravity.

[Patton, supra, 281 U.S. at 312-13, 50 S. Ct. at 263, 94 L. Ed. at 870 (emphasis added).]

Likewise, "nothing in New Jersey's history or tradition suggests any implied correlative right on the part of a defendant to demand trial by a judge and not by jury." State v. Dunne, supra, 124 N.J. at 312. Instead, the record must reflect sound reasons for the accused to forfeit such an important constitutional right. The more serious the crime, the greater the burden is on the defendant to show why there should be a non-jury trial. Id. at 314-15.

In State v. Fiorilla, 226 N.J. Super. 81, 92 (App. Div. 1988), we identified three circumstances in which a court should deny an accused's application to waive a jury. Thereafter, the Supreme Court in Dunne slightly revised those circumstances in order to give greater weight to the public's confidence in the fairness of the trial process. The Court in Dunne thus expressed the trial court's obligation as follows:

(1) determine whether a defendant has voluntarily, knowingly, and competently waived the constitutional right to jury trial with advice of counsel;

(2) determine whether the waiver is tendered in good faith or as a stratagem to procure an otherwise impermissible advantage; and

(3) determine, with an accompanying statement of reasons, whether, considering all relevant factors . . . it should grant or deny the defendant's request in the circumstances of the case.

[Dunne, supra, 124 N.J. at 317 (emphasis added).]

The pertinent factors, according to the Dunne, include the gravity of the crime, the State's position on the waiver application, the anticipated duration and complexity of the State's trial proofs, the amenability of the issues to jury resolution, the presence or absence of a highly-charged emotional atmosphere, the presence of particularly-technical matters that are interwoven with fact, and the anticipated need for numerous evidentiary rulings. Ibid. Applying these factors in Dunne, the Court sustained a trial judge's refusal to allow a criminal defendant to waive a jury in a murder prosecution in which he had raised an insanity defense based upon abnormal homosexual fantasies. Id. at 318-319.

The importance of the constitutional right to trial by jury is underscored by our State's adoption of a court rule, R. 1:8-1(a), which prescribes in relevant part:

Criminal actions required to be tried by a jury shall be so tried unless the defendant, in writing and with the approval of the court, after notice to the prosecuting attorney and an opportunity to be heard, waives a jury trial.

[R. 1:8-1(a) (emphasis added).]

However, we have excused the Rule's requirement of a written form of waiver "where the defendant in open court expressly and understandingly personally waives his right to a jury trial." State v. Wyman, 232 N.J. Super. 565, 568 (App. Div. 1989); see also State v. Paolino, 110 N.J. Super. 284, 285 (App. Div.), certif. denied, 57 N.J. 127 (1970). We enforced those principles in Wyman by vacating a conviction after a bench trial, where "[t]he trial transcript [was] devoid of any discussion between the trial court and defendant concerning an express and understanding waiver of his right to a jury trial or even an express and understanding assent to any waiver of that right by his attorney." Wyman, supra, 232 N.J. Super. at 568.

Examining the sparse record here guided by these established principles, we are not satisfied that the defendant's waiver of a jury trial is adequately supported by sufficient reasons or by any informed analysis. The crime that defendant was principally charged with, third-degree aggravated assault, was serious in nature, carrying with it an exposure of up to five years in prison. N.J.S.A. 2C:43-6a(3) (third-degree offenses may result in a sentence fixed by the court between three and five years). The case turned substantially on credibility issues, with the defendant's claim of self-defense pitted against the victim's account that defendant had struck her in the face without provocation. The State produced seven witnesses, including medical testimony that offered significant opinions interpreting the nature and cause of the victim's facial injuries. No eyewitnesses to the altercation testified, leaving the judge as fact-finder with an important role in assessing the veracity of the participants and the significance of the circumstantial proofs.

Despite the gravity of the case and the aforementioned nuances of the expected testimony, no written request to waive a jury was submitted in compliance with R. 1:8-1(a). Instead, defendant's counsel made an ad hoc oral application to waive a jury, minutes before the trial was scheduled to begin. The record does not reflect whether or not defendant and his counsel had discussed the advantages and disadvantages of such a jury waiver beforehand. The record also does not suggest why defendant wanted a bench trial, or that he was sufficiently cognizant of the implications of such a choice. Although it was not imperative to do so, the court did not swear in the defendant when it briefly inquired of him on these matters. It did not ask whether he was thinking clearly, whether he was under the influence of any drugs or alcohol, nor whether he was satisfied with his opportunity to review his waiver request with his attorney. The assistant prosecutor offered no position on the subject. Contrary to Dunne, the court placed no statement of reasons on the record for accepting defendant's waiver.

In sum, we cannot tell from the abbreviated colloquy in the transcript whether or not the dispositive factors of Dunne were satisfied here. We recognize that defendant has a substantial criminal record, both in Pennsylvania and in New Jersey, and that he may well have been fully aware of the implications of what he was doing in sacrificing such an important constitutional right. We also do not insist that trial judges in these circumstances follow a rigid script to assure compliance with the Dunne factors. Even so, we cannot sustain on the present record this departure from "the most trusted method of determining guilt or innocence." Dunne, supra, 124 N.J. at 332 (Handler, J. dissenting) (quoting 3 ABA Standards 15-1.2).

We accordingly remand this matter for further proceedings in the Law Division to ascertain the actual voluntariness of defendant's waiver, and for an informed judicial assessment of the defendant's reasons for giving up his right to jury trial. Cf. State v. Freudenberger, 358 N.J. Super 162 (App. Div. 2003) (analogously remanding a conviction for a hearing on the voluntariness of defendant's guilty plea and his waiver of trial, where the appellate record was insufficient to make that assessment).

The proceedings on remand should specifically explore any discussions that may have taken place between defendant and his trial counsel on this subject, such conversations not being protected by attorney-client privilege by virtue of defendant raising this constitutional issue as alleged plain error on appeal. See R.P.C. 1.6 (lawyer may reveal client confidences that are impliedly authorized to carry out the representation). The trial court shall also determine why the request was not raised until the brink of the trial. We note in this regard that at the final pretrial conference on October 21, 2004 defense counsel advised the court that "[r]ight now it's a jury [trial]," with expectation that the trial would consume one day, inclusive of jury selection. The judge should explore any discussions that ensued between defendant and his counsel in the intervening two months on this issue.

With the benefit of such additional facts, the trial court shall reconsider the propriety of defendant's waiver under Dunne, and render a statement of reasons reflecting its analysis. If the trial court should find that the circumstances surrounding defendant's waiver fail to satisfy the tenets of Dunne, it shall vacate the conviction and schedule a trial by jury with reasonable dispatch. On the other hand, if the court finds that the considerations of Dunne were fulfilled, it shall reaffirm the conviction and defendant may seek review of that determination and also renew his sentencing arguments in a new appeal.

Remanded for further proceedings. We do not retain jurisdiction.


Because this ground of appeal, if successful, would have mooted defendant's constitutional claims, we address it first, not- withstanding its placement as Point II in defendant's appellate brief.





May 15, 2006