State v. Parsons, 270 N.J. Super. 213, 221 (App. Div.
1994); State v. Lawrence, 142 N.J. Super. 208, 216 (App.
Div. 1976). Note also that if the jury sends an inquiry,
the judge should consult counsel before responding and
should respond in open court. Rogers v. United States, 422
U.S. 35, 39, 95 S.Ct. 2091 (1975); State v. Graham, 285
N.J. Super. at 341.
2. Reading Testimony to the Jury
The rules governing the reading of testimony at the
jury’s request are set forth in State v. Wilson, 165 N.J. 657
(2000) and State v. Wolf, 44 N.J. 176, 185-186 (1965);
see also State v. Wilkerson, 60 N.J. 452, 460 (1972). The
grant of such a request is in the discretion of the trial
judge, but the judge should readily accede when the
jurors request to hear testimony read, absent some
unusual circumstances. State v. Wilson, 165 N.J. at 660;
State v. Garrigan, 126 N.J. Super. 442, 446 (App. Div.
1973), aff’d o.b., 64 N.J. 287 (1974). The burden of
time is not such an unusual circumstance. State v. Lamb,
134 N.J. Super. 575, 582 (App. Div. 1975), aff’d 71 N.J.
545 (1976).
“[A]s a general rule, if a jury requests a readback of the
testimony of a witness, the readback should include both
direct and cross-examination.” State v. Wilson, 165 N.J.
at 660. However, where a request is clearly
circumscribed, it is proper to allow a readback of only a
portion of a witness’s testimony. Id. at 661. “But if the
scope of the jury’s request is unclear or if something
occurs during the readback to raise a question about the
extent of the testimony sought, the obligation of the trial
court is to ascertain the will of the jury.” Ibid.
The rule that the judge should accede to a jury’s
request to have testimony read back to it is not any
different where the proceedings are sound recorded
rather than stenographically transcribed. State v.
Middleton, 299 N.J. Super. at 31.
See State v. Reddy, 137 N.J. Super. 32, 37 (App. Div.
1975) (where stenographer who had taken requested
testimony was on reserve duty during jury deliberations,
trial court committed no error in its instruction to the
jury that it should first consult its collective recollection
and then if it still required the read back, arrangements
would be made to have the stenographer return on the
following day).
I. Receiving the Jury’s Verdict
1. Consistency
It is a well established principle first pronounced in
Dunn v. United States, 284 U.S. 390, 52 S.Ct. 189
(1932), and later reaffirmed in United States v. Powell,
469 U.S. 57, 105 S.Ct. 471 (1984) that consistency in
verdicts is not required. In Powell, the United States
Supreme Court explained that inconsistent verdicts -
even verdicts that acquit on a predicate offense while
convicting on the compound offense - should not
necessarily be interpreted as a windfall to the
Government at the defendant’s expense. It is equally
possible that the jury, convinced of guilt, properly
reached its conclusion on the compound offense, and
then through mistake, compromise, or lenity, arrived at
an inconsistent conclusion on the lesser offense. Id. at 65,
105 S.Ct. at 476.New Jersey follows the Dunn/Powell rule in cases in
which the reason for the inconsistent verdict cannot be
established. State v. Grey, 147 N.J. 4 (1996); State v. Ellis,
299 N.J. Super. 440, 456 (App. Div.), certif. denied, 151
N.J. 74 (1997). The Grey Court explained: the Dunn
and Powell decisions are not binding but the Court agrees
with their logic. So long as the evidence is sufficient to
support a conviction on the substantive offense beyond a
reasonable doubt, such verdicts are normally permitted.
The Dunn/Powell rule permitting inconsistent verdicts
should apply when the reason for the inconsistent
verdicts cannot be determined. In such cases, the court
should not speculate as to whether the verdicts resulted
from jury lenity, compromise, or mistake not adversely
affecting the defendant. Id. at 10-11. However, in Grey,
because the Court found the inconsistent verdict was an
obvious result of jury instructions which misled the jury,
the court reversed defendant’s felony murder conviction.
Id. at 17.2. Molding the Verdict (See also, THEFT, this Digest)
A judgment of conviction for a lesser included offense
may be entered where the jury verdict, of necessity,
constitutes a finding that all the elements of lesser
included offense have been properly established, and no
prejudice to the defendant will result. This rule applies
even though the jury was not instructed on the lesser
included offense if (1) the defendant has been given his
day in court, (2) all the elements of the lesser included
offense are contained in the more serious offense, and (3)
defendant’s guilt of the lesser included offense is implicit