332-33 (App. Div. 1994), certif. denied, 138 N.J. 269
(1994) (trial judge’s improper entry into jury room does
not require reversal of conviction if it can be shown that
judge’s ex parte communication with jury was not
prejudicial); State v. Vergilio, 261 N.J. Super. 648, 653-
54 (App. Div. 1993), certif. denied, 133 N.J. 443 (1993)
(trial court did not act improperly in speaking with
distraught juror who asked to see judge when defense
counsel left for day),
3. Remarks and Conduct of Trial Judge
A trial judge has the right, and oftentimes the duty,
to review the testimony and comment upon it, so long as
it clearly leaves to the jury the ultimate determination of
the facts and the rendering of a just and true verdict on
the facts as the jury finds them. State v. Ramseur, 106 N.J.
123, 280 (1987); State v. Laws, 50 N.J. 159 (1967),
reargued 51 N.J. 494, cert. denied, 393 U.S. 971 (1968).
Ordinarily the trial judge should “mold” the jury
instructions to the facts adduced at trial in situations in
which the statement of relevant law, when divorced from
the facts, may be potentially confusing or misleading to
the jury. State v. Robinson, 165 N.J. 32, 42 (2000); State
v. Sexton, 160 N.J. 93, 106 (1999); State v. Pleasant, 158
N.J. 149, 150 (1999); State v. Morton, 155 N.J. 383, 422
(1997); State v. Concepcion, 111 N.J. 373, 379-80
(1988).
Under State v. Hampton, 61 N.J. 250 (1972), a trial
judge must instruct the jury to disregard defendant’s
statements if they find the statements to be untrue. State
v. Morton, 155 N.J. at 428. The judge, however, has no
duty to instruct the jury that it must find defendant’s
statements credible beyond a reasonable doubt. Id; State
v. Chew, 150 N.J. 30, 82-83 (1997), cert. denied, 120
S.Ct. 593 (1999). State v. Kociolek, 23 N.J. 400, 421
(1957), directs that the judge must instruct the jury of
the inherent weaknesses of oral statements. State v.
Morton, 155 N.J. at 428. It is not proper for a trial judge
to indicate his belief or disbelief in a witness’s testimony.
State v. Walker, 33 N.J. at 595; State v. Corbo, 32 N.J. 273
(1960); State v. R.W., 200 N.J. Super. 560, 569-70 (App.
Div. 1985), aff’d and mod. o.g., 104 N.J. 14 (1986).
In State v. Harold, 183 N.J. Super. 485 (App. Div.
1982), defendant attempted at trial to call as a defense
witness a nine-year-old child who, after testifying for the
State, recanted her testimony, but the trial judge refused.
On appeal, the Appellate Division reversed defendant’s
conviction and held that the trial judge misconstrued his
role and thereby usurped the jury’s role to weigh the
credibility of the recantation testimony offered by
defendant. Where recantation testimony is offered
during trial, the jury, not the judge, has the function to
weigh credibility. See State v. Wolf, 44 N.J. 176, 191-92
(1965) (refusal of trial court to reopen proceedings, after
jury had retired to deliberate, for further testimony after
receiving notice that State’s witness-coparticipant in the
murder wanted to recant, was reversible error).In State v. O’Connor, 42 N.J. 502, 510-11 (1964),
cert. denied, 379 U.S. 916 (1964), the New Jersey
Supreme Court held that defendant’s motion for mistrial
on the ground that the court was severe in questioning
defendant and that the court’s facial expressions at
various times showed disgust, amusement, disbelief of
defendant, annoyance and temper was properly denied.
There was no abuse of discretion in denying defendant’s
motion where trial judge stated that he was unaware of
any such facial expressions or use of severe questioning
and where the court cautioned jury with respect to trial
court’s actions or conduct during trial. Accord, State v.
Christie, 91 N.J. Super. 420 (App. Div. 1966).In State v. Knight, 63 N.J. 187, 192 (1973), in
response to defendant’s objection to a question asked of
a witness, the trial judge responded, “I don’t I will permit
it,” and to another objection responded, “Well, you can
object. Your objection is noted but the jury is entitled to
know.” The Court held that the judge’s comments did
not constitute unfair criticism or an attempt to humiliate
counsel.In State v. Vassos, 237 N.J. Super. 585, 590-91 (App.
Div. 1990), the court held that the trial judge’s
interruption of a key defense witness’ testimony to warn
him that his testimony could subject him to perjury
arising from inconsistent statements he made in
connection with his guilty plea for the same offense, and
then striking the testimony where he refused to testify
further, violated defendant’s due process rights to a fair
trial.Not all improper comments by a trial judge lead to
a reversal. See State v. Salaam, 225 N.J. Super. 66 (App.
Div. 1988) (trial court’s reference to defendant’s alias
following robbery victim’s identification of defendant
and during final instructions was harmless error); State v.
Pemberthy, 224 N.J. Super. 280, 302 (App. Div. 1988)
(comment by trial judge, after determining trooper was
qualified as an expert in narcotics investigations, that he
was impressed with trooper’s qualifications, did not
require reversal in light of curative instruction following
denial of defendant’s motion for mistrial); State v.