*1 PLAINTIFF-APPELLANT, JERSEY, STATE OF NEW SINGLETARY, ROBERT DEFENDANT-RESPONDENT.
Argued May 23, January 22, 1979 Decided 1979. *3 General, Lamb, argued Attorney
Mr. William F. Deputy Attorney Degnan, John cause appellant {Mr. General of New Jersey, attorney). Chattman, De- Public Deputy
Mr. II. Richard Assistant C. Stanley fender, argued the cause for respondent {Mr. Ness, Van Defender, Public attorney).
The delivered opinion court was whether, raised this appeal J. The issue Pashman, refusal to excuse case, under court’s facts of this trial victim had been the recent juror for cause a who prospective which a defendant crime similar in nature to that with error, where the was constituted reversible charged a exercise excused defendant’s subsequently through Division held that challenge. Appellate error, case such a refusal amounted to prejudicial the present a new trial. conclude ordered defendant be We given transcend bounds that the court’s decision did not a fair of reasonable discretion defendant received and that *4 reverse and reinstate the conviction. Consequently, trial. we On ease are undisputed. essentially The facts of this and one were 21, 1975, Eugene Leggett October robbery Grand while County Jury a Passaic by indicted N. J. S. N. J. S. A. 2A:141-1 and A. armed, in violation of arose out of charges August 2A.T51-5. Sandifer, an Chuck’s of Robert employee Wrigley hold-up in Paterson. The two men were separately Park Tavern tried involved this appeal. and Leggett on January trial commenced selection defendant’s Juror the questioned by closely 1976. were Prospective jurors participat- with relationship persons their court concerning field; law enforcement ease or employed ing crimes; back- their as victims in personal prior involvement fairly and and serve and ground; willingness their ability At the conclusion of impartially. day’s proceedings, defense, 9 peremptory by been challenges had exercised had been utilized had State,1 prospective jurors been excused for cause the trial judge.2
Jury selection on After one pro- continued 26. January spective juror was excused due to with State acquaintance witnesses and another challenged by was peremptorily defense, venireman Kenneth J. Sheeran was called. During voir court’s dire Sheeran, examination of following colloquy occurred: you Have of a
Q. the victim crime? A. Yes. you when, Will tell me Q. the nature? City up I work for a A. bank York it held New on January 9th. January year? 9th of this Q. year, yes, A. Of this sir. you particular event, having recent, Do feel Q. been so any your ability effect have to sit as a fair and im- partial in this ease? I do A. No. not. * & * * * ft; & explain Sheeran, you apply as I it Mr. the law will be will Q. regardless personal feeling any you have about law? A. Yes. against person you any prejudice simply Do bias or be- Q. charged cause he’s with a crime? 2A:78-7(c), A. the defense is entitled to 20 1Pursuant J. S. (d). challenges R. 1:8-3 and the is allowed 12. acquainted they because were 2These veniremen were excused either robbery or were the owner tavern where the occurred of the familiar with State witnesses. *5 A. No. you anything particular Do know Q. about this case? A. No do not. any your family you any Do or in Q. members of interest pending a outcome of criminal in our case now courts? No. A. you party to, personally in the Q. Have ever been or interested out- a come of criminal case? A. No. testimony you give any greater weight to the Q. Would less police simply capacity? a officer of his official because A. No. Sheeran, you’re jury, you if selected to serve Q. Mr. would impartial juror be a fair and to both the State and to the de- fendant? Yes, A. I will. conference, a brief continued questioning After' sidebar as follows: you’ve Sheeran, robbery, in connection with bank Q. Mr. just ago, you actually mentioned which occurred a few weeks were particular robbery . involved in that . . Yes. A. your just robbery particular (continuing) or was it in Q. branch? No, I in A. was involved it. robbery? it an armed Q. Was Yes, A. it was. particular circumstance, considering you feel And that that do Q. charge robbery being armed dur- this case involves that particular ing robbery, of the event so the commission any way your ability recently sit on this not affect case? No, I do
A. not. defense then exercised its 19th and dismissed The Thus, did not Sheeran. Sheeran fact sit as defendant’s trial. sidebar conference which occurred the interro- during of Mr. Sheeran
gation request by defense counsel involved that Sheeran be extent of his questioned involve- bank if robbery. ment Counsel indicated Sheeran *6 were, fact, an of the crime he would move actual victim court, for for cause. The trial to response his excusal an as Sheeran remarks, these stated inasmuch professed that for cause to be fair and no would ability impartial be granted. were dismissal, veniremen
Subsequent to Sheeran’s three and one defense by excused: two the State peremptorily — final chal- counsel who exercised thereby peremptory his empanelled. of 14 was and lenge. selected Einally, jury of the Defense counsel for record his version stated conference, sidebar Sheeran noted his contention that had he have been that cause, emphasized excused for and of peremp- to his entire complement exhaust required tory challenges.
The actual rested trial case The State’s spanned days. two Sandifer, alleged largely testimony of Robert victim of the Sandifer the defendant robbery. identified revolver, held one three men who him threatened him and of scotch and up took his with a case money along a small The defense amount cash to tavern. belonging both attacked the of Sandifer’s identification accuracy attempted to establish an alibi.
The robbery found of the guilty defendant further concluded he armed commis- that had been its during sion. Defendant of 10-13 was to an aggregate sentenced 6-8 years, consecutive including years robbery 4-5 term year armed. being
The Appellate Division, one judge reversed dissenting, conviction. v. Singletary, 156 N. J. Super. 303 Div. In its (App. 1978). view, the failure to excuse venire man Sheeran for cause constituted prejudicial error. State filed an as of appeal this right Court pursuant B. 2:2-1 (a) (2). claims that the trial
Defendant court’s refusal to excuse venireman Sheeran for cause constituted prejudicial error in that he was deprived of his full complement of twenty be that this It must emphasized
peremptory challenges.
sole
is
ground
defendant’s
challenges
denial
peremptory
ultimately
that the jury
has
alleged
Defendant
appeal.
has he contended
nor
impartial
other than
empanelled
Rather,
fair.
he maintains
his trial was less than
is
for cause
se
per
denial of a challenge
erroneous
in which a
thereby
case
any
prejudicial
peremptories.
his
compelled
exhaust
had
judge
Were we of the view
chal
defendant of
erroneously
fact
deprived
merit
contentions in this
serious
regard
his
lenge,
integral
Jury
Court.
selection is
consideration
*7
every
of
defendant
is
process
the
to which
criminal
part
so,
to do
required
entitled.
Although
constitutionally
State,
L.
A 1899),
Brown
62 N. J.
666
&
the
see
v.
(E
insure that
this Court
to
sought
Legislature
‘as
lot
of fact will be “as
of
nearly
triers
impartial
counsel with
will admit’”
defense
humanity
providing
Jackson,
State
43 N.
v.
J.
peremptory
twenty
challenges.
148,
cert.
sub nom.
v. New Jersey,
158
den.
Ravenell
(1964),
L.
572
U. S.
85 S. Ct.
13
Ed. 2d
(1965).
379
such,
A.
R.
N. J. S.
1:8-3
As
See
2A:78-7(c);
(d).
“[t]he
is
denial
denial
the right
Bernstein,
N. J. 284,
v.
23
Wright
of a
right.”
substantial
see,
Jackson, supra;
v.
United States
State
(1957);
e.g.,
295
F.
United States v.
v.
566
Cir. 1977);
2d 68
Allsup,
(9th
Holliman,
Nell,
v.
526 F.
Cir.
State
1976);
2d 1223 (5th
Having carefully pro below, however, we have ceedings concluded that the trial Sheeran court’s refusal to excuse did not amount to error. We have held that trial courts long are “vested with broad discretionary powers determining qualifications of exercise will jurors discretion judge’s] ordinarily [a Jackson, State not be disturbed on v. 43 appeal.” supra, see, Simmons, 160; v. e. State N. L. g., N. J. 120 1938). & A The reasons underlying appellate defer- (E are not difficult made judges enee to the assessments bias concerning potential Decisions to fathom. They nature. subjective are prospective jurors primarily credi- juror’s concerning bottom a require judgment detect whether he bility questions designed responds trier of fact. Con- impartial he is as a fair and able to sit necessarily dependent upon are such evaluations sequently, the course of during of the demeanor juror’s an observation — is pre- dire court appellate voir observations cluded from making. sure, in certain circumstances a venireman’s
To be indicated by past expe is his sufficiently bias potential excuse for cause will necessitate refusal to riences Jackson, See, e. excuse State g., supra (failure reversal. v. Holli State State key witness); who was friend juror man, of the juror to excuse who friend supra (failure Deatore, J. 100 N. victim). (1976) murder Cf. and victim relationship” requires between ("close however, In of cases, cause). majority excusal heavily or not to dismiss the challenged juror whether evaluations of his upon subjective credibility. dependent within this latter chal Encompassed category are in a upon juror’s involvement lenges recent predicated that with which is charged. similar to crime Grillo, See J. 103 Unlike situations (1954). venireman is acquainted persons in which the who will *8 Jackson, Deatore, v. State v. trial, see State supra; testify victimization juror’s a recent criminal does supra, always not a risk of bias for to such that excusal cause great rise give Grillo, emphasized ordered. As we must be juror] imputation law, [such a as a of bias to matter of be- highway robbery only he once had been the victim of is cause surmise “* * (cid:127)* speculation and more and would be no sensible than to im- pute larceny householders bias all storeowners eases of burglary.” (quoting [ 16 N. J. at 113 from Dennis v. States, 162, 167, United 339 U. S. 70 S. 519, 521, (1950)] 94 L. Ed. 740 Ct. 64
Instead, we the decision noted that excusal was concerning an of all the facts circum- dependent upon evaluation stances the crime and juror’s to act surrounding ability Id. 16 N. J. at 113-114. impartially. case,
In the trial court present questioned Sheeran could, from his extensively responses concluded he (fact, be impartial. Although juror’s professions of will insulate him from impartiality always excusal see, Jackson, Deatore, v. cause, e. State g., supra; see, will be deal supra, they great weight, accorded e. g., Grillo, v. v. State N. J. L. supra; Jefferson, judge & A Inasmuch (E 1943). as the trial observed demeanor, venireman’s he was in a position accurately assess the sincerity and of such credibility statements, and we should therefore due deference to his pay evaluation of qualifications. Sheeran’s circumstances,
Under these and in light of the ab sence of of bias any allegations or unfairness in the trial itself, there is no need to order a new trial. it Although well might have been wiser course to have excused venire cause, man Sheeran the failure to do so was not so clearly an abuse discretion as to necessitate reversal on this alone. ground
We emphasize, however, that
nor this
neither Grillo
opinion should be read as
holding
prospective jurors
who were recent crime victims should not be excused for
Quite
cause.
contrary,
juror’s involvement in a recent
See,
similar crime will often
e.
require
excusal.
g., Salazar
State,
Accordingly, Appellate the judgment convictions reinstated. reversed Jacobs, After thoroughly interrogating J., concurring. dire, voir the trial court concluded prospective he exercised qualified that to serve. its Accordingly, it him discretionary refusing discharge broad powers for cause. It did so well if the defendant knowing still function juror’s ability harbored doubts as to the the defendant could him discharge impartially peremptorily. The just defendant did result the juror did a full in the trial. After and fair participate He robbery. was found armed now seeks guilty a retrial makes he no that the though semblance showing him convicted was not truly impartial one or in anywise its verdict was or not in unjust conformity with the evidence. It clear me that appears under these circumstances retrial would burden needlessly the adminis justice tration disserve the interests of grossly State, Patterson v. Ga. 409, See 238 S. E. society. 2d 2 (1977): conduct of voir dire is within the discretion of the trial proper
court, rulings court’s and the are absent some manifest abuse *10 State, 665(5), 2d 390 229 E. S. 237 Ga. Welch v. of discretion. (1976). State, 707(2), S. E. 2d 224 ; 225 (1976) v. 236 Ga. Gatlin the of juror discretion the lies within a for cause to strike
Whether 671, Welch, supra E. 2d 390. We 229 S. 237 Ga. court. any carefully find abuse discretion. and fail to reviewed the record jury con jurors allegedly on which did sit the biased These two prejudiced harmed appellant, was that he has he shown nor victed challenged the two strikes to eliminate because he used 1283(9) (1976), Silvola, Colo., cert. jurors. People P. 2d 547 v. See (1976). [238 2d 167 L. Ed. 50 429 S. 97 S. den. U. Ct. S. 5] E. 2d at a new In for Singletary’s request the defendant granting Division, vote, heavily divided relied Appellate the Jackson, N. readily 43 J. 148 which is upon ,(1964), discharge There the trial refused to distinguishable. court it was a close that he juror though appeared prospective friend of a for and that the the State principal witness he ex- already could not excuse him since had defendant juror hausted his As a result the peremptory challenges. the actually served and participated rendering guilty In verdict which the defendant’s death sentence. produced I it the for unanimous Court out that pointed opinion run juror counter to human nature to the expect on matters of between close pass impartially credibility his and His friend defendant. on the very presence jury tainted verdict and the justice its as well as appearance its cried actuality aside of verdict setting out and no death sentence. time Surely need be spent differentiations between Jackson patent and the case at hand trial, fair where, after was found Singletary by an guilty impartial carried no suggestion taint. Division Appellate placed reliance on Wright
Bernstein, N. 23 J. 284 (1957), which is also readily a new distinguishable. There trial was ordered where it juror, that a who had appeared failed to disclose on the voir dire that his mother was a to a party lawsuit, pending actually participated the trial and in the verdict accident ease That was an automobile and the plaintiffs. asked being that he was whether juror mistakenly thought in similar automobile any member his family engaged was In his had fallen a store litigation. mother accident fact was owner. dissented from the suing grant its new trial had because the record established that no acted honestly there had impartially v. Bern Wright whatever of harm or See showing prejudice. stein, Gransamer, N. 297-301; J. Meszaros cf. Though dissenting opinion (1957). *11 filed over two decades time and ago, experience simply served to reinforce In its thesis. view of the larger implica in tions the of ready retrials, of I take the granting liberty now its full: repeating in concluding paragraph juror’s] The uneontroverted circumstances [the establish that statement, though inadvertently inaccurate, actually not harm- prejudicial impaired complete ful or and in of nowise the fairness justness controlling the trial nor the the of verdict. If of the test justice any significant meaning, substantial is to have then the course reasonably in should be taken the instant matter seems clear. supra Gransamer, See Meszaros N. [23 189-190] J. at : “Throughout history present goal ever the has been to attain a system justice person every better of fair, which affords to in- expensive speedy trial, technicality and unshackled needless and goal by every pro- formalism. This is frustrated new trial for a impair did cedural error which not the fairness of the first trial justness original day nor of the the verdict. In this there be ready recognition justification of of absence such new trial except really in unusual where it is instance essential to insure practice prescribed safeguard future of observance or the vindica- principle. tion of a fundamental It will not suffice that we have solemnly practice (R. forth in a 1:5-3(6)) set formal R. rule granted sought a new trial will not be appears ‘unless a denial the relief justice’; to the court to be inconsistent with substantial as properly pointed years ago, Professor Sunderland out almost 30 we always interpret go apply sym- must further and and the rule with pathetic understanding procedure that trial is the end in itself justice: merely attaining but is the vehicle for prejudicial problem problem professional error is a in ‘The psychology. it, No rules can framed be which will solve for rules only general terms, interpretation in can be drawn it is * * * difficulty only permanent the rules that comes conception respect technicality is a better in this cure effective year procedure. England purpose In 1924 not a of all of the single King’s for error Division was reversed from Bench case simple explains why admitting excluding fact evidence. That lawyer. annoy English longer practice And intricacies of no judicial explains Procedure establishment. it the success of the whole practical no more Its rules are means to an end. has become ** judgment efficiency requires. Every exacting which is re- than contrary rules, merely shows failure versed because obtained 8underland, purpose main of their existence.’ the courts to serve the (1927), Appellate Review,’ A. Rev. ‘The Texaisi Problem Moore, quoted supra, 300-301] J. at [23 in 7 at 1002.” vote to reinstate P ashman’s opinion Justice join the defendant conviction. Singletary’s
Justice joins opinion. Sohreiber this Clifford, was charged Defendant J. dissenting. Kenneth J. Sheeran’s armed before rohhery. days Seventeen “personally case he was in this being called to serve as a juror New York bank involved” in an of the armed robbery where he was employed. sister-in-
In trial Sheeran’s before addition, months eight law was murdered. venireman as a simply view
My quite had sat *12 would have been stacked or against the deck defendant juror, n —(cid:127) — least and at the to be avoided equally stacked, and under the appearance being that given the trial court’s disallowance of a circumstances challenge to a mistaken cause amounted exercise of discretion for a reversal the conviction. trial for The court’s calling in made Sheeran’s upon reliance stated apparently ruling, nevertheless remain impartial, could required he belief use one of his to two remaining peremptory counsel defense venireman. Shortly this thereafter de- excuse to challenges his allotment of twenty peremptory exhausted chal- fendant A. B. 1:8-3 8. 2A:78-7(c), (d)) before the (N. lenges His use of a compelled empanelled. was what have followed from to achieve should his challenge his him of one of allotted deprived cause challenge inwas effect and twenty He was to peremptories. entitled rub. word, is the That, but nineteen. in a accorded trial court’s first, issues: whether the case two poses an for cause constituted refusal to Sheeran excuse juror circumstances, namely, where abuse of discretion under these used, had been after peremptory challenges eighteen an armed contended venireman’s victimization to being a and a weeks before called robber scant two half victim aas robbery disqualified armed case decide in that second, regard if the discretion and trial court’s juror; in the exercised, the reduction whether mistakenly erro- from the challenges resulting number of peremptory entitles defendant to denial for cause neous new trial. out majority points
As to the question, properly first Grillo, Court found 16 N. J. 103 (1954), months before no who eleven prejudice allowing armed robbery had been to sit in an held up gunpoint dissenting Waehenfeld’s murder Justice felony prosecution. view did not carry day: weapon deadly assaulted, and who has with a [O]ne threatened lightly forget forgive likely or even nor treat robbed to
fairly human reaction similar This is normal conduct others. anticipated following customary behavior, expected the back experience. ground of [ 16 116.] N. J. While Justice Wachenfeld’s happen agree entirely we position, can, today’s should, purposes probably Grillóos leave holding unimpaired simply distinguish that case that here the were two crimes ground both more similar in nature and closely more related in time. Grillo, however, cases, more recent like-
Notwithstanding readily wise both on 'their and on distinguishable facts their course holdings, point unmistakably we take *13 Jackson, this case. From v. State 43 N. J. 148 (1964), Deatore, State 70 N. J. 100 both in some (1976), discussed detail in below, opinions Singletary, the the court State v. N. J. Super. Div. we can tease out a (App. 1978), common theme, a broad to the effect that guiding principle, “jurors must be with an towards their carefully eye selected ability im determine controverted issues fairly partially” and “the trial court see it that the jury ” is as nearly ‘as the impartial lot will admit/ humanity Jackson, accord, 157-58; 43 N. J. supra, Deatore, 70 N. J. at 105-06. Nor does the obvious differenti Deatore, feature ating of Jaclcson wherein tainted juror sat whereas here was not of the final part jury, he serve to dilute the force of the stated underlying, guiding principle.
Furthermore, from quite apart any fact prejudice upon visited his for disallowing challenge defendant cause is effect of such a on the ruling appearance Jaclcson, justice. As the Court observed in in sustaining the challenge for cause that case: honored, [I] should have been if for no other reason than to insure any [the defendant’s] confidence in the fairness of basic In trial. judicial system only justice sound it is essential not that be done appear but it to be done. [ 43 160-61.] Thus in view Jaclcson dictates that my must have the benefit of doubt where any juror’s impartiality into by defendant’s brought question challenge cause. Given venireman Sheeran’s experience, not including only recent his victimization at of a bank the hands robber but also murder of his sister-in-law, was it disregard principle led the trial court into error.
But, ask, one what harm might here? done Even if court was wrong granting cause, Sheeran did as a not‘sit juror because defendant ex- ercised so the challenge, eventually *14 untainted. Iiow has defendant returned a was verdict ? prejudiced the answer. Jersey which supplies
There is no New case one at- in the importance lies, think, It for the most part to jury of a fair and impartial taches to the attainment to view end. I tend available to achieve that process the member any a moment process .(without suggesting a more than considerably of Court this feels as otherwise) fair im- a be tried procedural formality. to right guarded,” “fundamental” one to be partial jury “jealously Bernstein, are Our rules Wright (1957). to the empanel- assure carefully, albeit imperfectly, designed of a will reach jury to the extent ling greatest possible its verdict on evidence absolute fairness and com- with this one Hence in a criminal case such as plete impartiality. any defendant is afforded to excuse twenty opportunities — reason, reason, a bad venireman for a peremptorily good reason id. of in- Any or no at all. 293. diminution See de- legislatively granted opportunity upon that fringement De- as our rules permit. fair prives defendant of as here, which I is that his agree, fendant’s argument from his due process claim of error derives guarantees trial, fair to of his entitlement from our standards whereas twenty of legislative grant from springs relief thereto, which he denied. right and his challenges was Division’s reversal con- Appellate I would affirm for a and remand new trial. viction indicted, Defendant con- J., dissenting. was Handler, an armed rob- and sentenced jury committing victed by an of Paterson tavern. When brought bery employee trial, through he endeavored his to secure a attorney satisfaction, as fair and be, impartial his rules within the limits of the selection possible governing in criminal trials. His how- rights respect, juries when, were curtailed close to the end ever, severely dire trial judge voir turned down procedure, defendant’s
reasonable to excuse for cause a request prospective juror who had less than three weeks before been victimized robber; result, armed as a to elimi- compelled defendant nate that juror by the use his next-to-last peremptory and, with the his exercise of last peremptory, accept then jury as Under these circum- empanelled. stances, I would reverse the allow conviction and to be retried.
It manner in important to recite in some detail which the em- jury which came to be convicted defendant indicted paneled. Defendant and another were Singletary for the at armed 1975. selection robbery on October Juror on day period, trial occurred over a two Singletary’s separate voir dire January 1976. the course of the During court, examination of on its prospective jurors, the apparently who motion, jurors, excused for cause five prospective own tavern been robbed knew owner of the that had either Questioning for the State. with witnesses were acquainted veniremen had that five voir dire revealed also during who had close relatives or had been crime victims exercised peremptory Defendant criminals. been victimized four of these. challenges against of his exercised eighteen After had already juror a prospective twenty peremptory challenges allotted The voir dire examina- of Sheeran was called. the name follows: unfolded as tion Sheeran you Q. Have the victim a crime? A. Yes. you when, Q. Will tell me and the nature? up City A. I and it was work for a bank in York held New January 9th. January year? Q. 9th of this year, yes, A. Of this sir. you particular event, having recent, Do feel that that Q. been so any your ability would have effect on and im- to sit as fair partial in this case? No, I A. do not. any your family Has other Q. member of been the victim of a crime? A. A. My partial No, it of that How about that Q. sister-in-law was murdered last would not. juror? event would affect particular ‡ your ability event, do year, May you feel sit as a 22nd, fair the existence 1975. >'fi im- [*] un- standard, There then a dozen general followed questions face answers, related to these which the taken at crimes to value, on the acknowledged part no or bias prejudice Sheeran. pro- last the State
With the to the response question, immediately Defense counsel nounced the jury satisfactory. e., i. bar, jury’s beyond to be heard at side requested ensued, An off the hearing. during record discussion chal- the court defendant’s grant indicated it would a discus- such note (We for cause. lenge parenthetically 1:2-2; B. record. sion not have been off the Green, 1974)). Ap- Div. 129 N. J. Super. (App. then counsel, court instigation of defense parently merely victim or whether Sheeran was an actual inquired before: days seventeen spectator robbery *16 robbery, Sheeran, bank with the Mr. in connection Q. ago, just were you’ve weeks a few which occurred mentioned robbery— particular actually you in that involved A. Yes. your particular robbery just (continuing) it Or was Q. branch? No, in it. I was involved A. robbery? an armed Q. Was it Yes, it was. A. circumstance, particular consider- you that And do feel that Q. being robbery charge armed and ing involves that this case particular robbery, event during that of the the commission any way ability your sit on recently to not affect so this case? No, I do not. A. and not excused for cause the court by was The juror exercised his nineteenth peremptory counsel defense the concluded jury The then to remove Sheeran. selection 74 veniremen were The next three excused
rapidly. by peremp- — — tory two the State and one his challenge, last The defendant. court then initiated and held another con- have not, been, ference was but should (which the and, after of the next record, i3.) summoned questioning the sides the and juror, pronounced jury satisfactory both Thereafter, his were defense counsel reiterated jurors sworn. objection that Sheeran have been excused for cause and he exercise all required twenty noted that had been to of his not acted objection This peremptory challenges. the court. trial defendant was upon by Following jury found of the guilty charge.
I
for the
court
was cause
to whether there
With respect
to the
conclude, contrary
juror,
controversial
to excuse the
there
presented,
circumstances
that,
under
majority,
bottomed upon
was. The conclusion
uncontestably
fair
a trial by
to
right
of defendant’s
importance
singular
court
of the
part
is an
jury
integral
“The
jury.
and impartial
*
**
parties
justice
for the administration of
[an]
who hears
jurors
each
action are entitled to
influ
improper
from
free
and
unprejudiced
case impartial,
Simon,
quoting
199
(1979),
ence.” State
Bernstein,
(1957)
N. J.
294-295
Wright
from
has
Flintkote,
It
N. J.
(1951).
Panko v.
citing
our
legitimacy
system
stressed
repeatedly
of criminal
on the fairness
jurisprudence depends
“Jurors must be
integrity
process.
selection
an eye
selected with
toward
‘their
[carefully]
ability
[s]
controverted issues
fairly
determine the
impartially;
* * *
the trial court should see
it
[and]
jury is
“as the lot of
will
humanity
as nearly impartial
’
*17
Deatore,
v.
J. 100,
admit” ”. State
70 N.
105-106
Jackson,
v.
157-158
(1976); State
(1964),
Ravenell
cert.
sub nom.
v. New
Jersey,
den.
S.U.
85 S. Ct.
well have been wiser course [the so” cause”, for but concludes the “failure do juror] “necessitate reversal alone”. ground would not on this [a] Ante is not us, however, at 64. The as it comes to question whether it would have been adroit for the strategically court to have the risk of reversal by excusing avoided clearly troublesome of this case juror. The circumstances not likely could spelled juror out reasons to believe that and he have tried neutrally reacted to the charge being matter not should have been trial court as excused but cunning majority’s ruling for cause. The good a matter juror need not as have been excused cause of trial court different merely upon discretion is based It seems to perception undisputed represent evidence. unwarranted retreat from the reflected approach sound earlier that found taint under circumstances juror decisions here. State no more than those See presented compelling Jackson, v. have supra challenge cause (holding witness); who was friend state granted juror against Bernstein, where Wright error supra (reversible mother plaintiff accident case failed to disclose his Deatore, supra unrelated personal injury case); cf. error where court refused to (reversible question prospective being with victim in case juror concerning acquaintance tried).
In of its support position, to draw majority attempts jurors distinction between biased because of potentially personal relationship involved the case and persons jurors, here, who had some direct or indirect personal the victim of a experience as recent crime similar The Court being tried. in the first impute prejudice category jurors but not the latter. Ante at 64. Many eases, however, have of a recognized propriety
76 a juror’s impar for cause where there reason to question with, as, or because involvement tiality of direct or indirect State, 480 crime; v. 562 W. 2d the victim of a e. S. g., Salazar charged where defendant Cr. (Tex. App. 1978) (juror assault on sexual with witnessed had indecency child State, Cr. 760 (Tex. W. 2d own v. 376 S. daughter); Pugh a best friend had in trial App. 1964) driving drunk (juror People before); few days who was killed drunk driver 1948) 468 Ct. De-Haven, (Sup. N. W. 2d v. 321 Mich. 32 who had been had relatives trial (jurors statutory rape in State, Tenn. 182 Durham v. offense); same convicted of case 1945) (juror rape 188 W. 555 Ct. (Sup. S. 2d rape with intent in assault been witness prosecuting had Holliman, W. 932 2d v. S. three years case before); in murder of victim was friend 1975) (juror Ct. (Mo. App. E. 2d Keaton, 223, 148 Ohio App. v. Bailey trial); been trial had in bastardy 120 (Ct. App. 1957) (juror Poole, States United bastardy case); in prior plaintiff be difficult F. it would (observing 2d 1082 Cir. (3 1971) in armed rob objectivity victim robbery capable to hold Bernstein, I know supra. Wright case bery (dictum)); cf. enables human behavior that of no primer psychology between for bias as to potential to differentiate this Court side of criminal to one relationship jurors some standing recently suffered who- have and those prosecution hands of a criminal.
In this criminal armed prosecution robbery, the a juror to excuse who seventeen judge only days was asked been involved in the sam-e Ad- type before had crime. the juror’s it revealed sister-in-law had ditionally, was been months before. The only majority, murdered eight nevertheless, un- to discount the what appears significance was a ordeal for doubtedly trying having involved an armed and accords no personally robbery added, to the weight juror’s fact that the sister- aggravating in-law had been murdered. recently Since itself majority concedes that a juror be biased may potentially because its to reconcile Ante it is hard experience”, “past rest bias in this case would assertion imputation “ ”, Ante at 63. speculation’ on no more than ‘surmise and experiences” It is recent vivid “past difficult imagine a juror sitting impact upon a more obvious having prejudicial here those a trial of an armed robbery charge than through *19 voir dire examination. related Sheeran in the course of the with ‘vested courts are observes majority “[t]rial in determining qualifications discretionary powers broad or will exercise discretion jurors judge’s] [a at 62. Ante ”. not disturbed on appeal’ be dinarily however, discretionary, characterize the ruling to Simply court should One that a reviewing begs analysis. may agree observe a to ability a trial give judge’s substantial to weight See evaluate credibility. demeanor and his venireman’s Mathis, on other 238, 248 rev’d N. J. (1964), State v. 52 L. 855 29 Ed. 2277, S. Ct. 2d 946, U. S. 91 403 grounds is Nevertheless, potential prejudice where the (1971). on review should hesitate blatant, a court sufficiently and, intervene, independently, voir dire record assess the for cause where hold that a necessary, challenge Dowd, Irvin v. 366 law. as a matter of granted Cf. L. Ed. 756 717, 723, 1639, 1643, 751, U. S. 81 S. Ct. 6 2d 369, State v. Van 43 N. J. 386 Duyne, (1964), (1961); 14 Ed. 1359, cert. 380 U. 85 Ct. L. 279 den. S. S. 2d (1965).
We know that psychological may act sub conditioning a juror’s consciously impede ability to reach a verdict Simon, the evidence before him. solely upon See State v. J. at 199—202. supra, Only exceedingly sanguine view of human nature accommodate the notion a recent victim could divorce from robbery his or her mind the such a emotional Tesiduum of personal trauma and be capable in of an objectivity armed robbery prosecution. Poole, States v. United F. supra, 450 2d at 1084. There is Cf. an undeniable of truth in ring Justice Wachenfeld’s in dissent Grillo, N. J. 103, 116 (1954): weapon deadly assaulted, a has been who threatened One forget lightly likely forgive or treat nor to or robbed is not fairly a normal human re- similar others. This is conduct in even expected anticipated following customary behavior,
action experience. background of is not on the prejudice is actual rate what critical At any In juror. considering part prospective juror’s whether a question prospective prior is not cause the will, fact, inevitably or necessarily prejudice experience but, rather, strong him whether there is or or her likelihood in human an in that such probability grounded experience be, will indeed, be, prejudiced. dividual will appear to Cf. Jackson, That substantial likelihood of supra. case. facts It is not prejudice generated by juror’s own, blunted lona appreciably by the apparently fide As profession United States impartiality. Supreme Dowd, Irvin v. supra, juror may Court noted be sincere Yet, he will fair and insisting -impartial. be the “psycho logical impact such declaration requiring before one’s fel lows its father”. U. S. S. is often 81 Ct. *20 Court,
6 L. Ed. too, 2d 759. This has recognized that in circumstances, some “sincere disclaimer [though a] [of may be At runs counter to prejudice] human nature’” An the face of the plain reality of the ”. courtroom’ “[flies] Deatore, State v. 70 N. J. supra, 105-106; State v. Jack son, 43 N. J. at 160. supra, Empirical research tends to cor roborate belief that prospective jurors often subconsciously as well to consciously attempt as conceal their biases on voir dire. Broeder, See “Voir Dire Examinations: An Empirical 38 So. Study”, L. Rev. 503 (1965). Calif. I would add that the trial court has a direct responsibility to conduct proper and adequate examination of prospective (fair jurors to assure the empanelling and impartial R. jury. 1:8-3 (a); State v. Manley, N. J. 259, 281-283 Morales, (1969); State 116 N. J. Super. 538, 541-542 Div. (App. 1971), certif. den. 60 N. J. 140 ,(1972). The trial court here did not in see fit this discharging responsi- as the relevant circum further Sheeran question bility incident which related criminal he stances surrounding If there were after defense counsel. only any prodding by prior of these criminal doubts to the lingering capacity juror’s on the state imprint events to leave a prejudicial mind, try he could his belief professed notwithstanding have been dis bias, the case without those doubts State additional examination. See pelled by exploratory Deatore, Sims, N. J. supra; Super. cf. 172-173 1976). clarifying inquiry, Div. Without such (App. un crimes, which by juror disclosures of recent him, touched for his doubtedly constituted sufficient cause dis qualification to serve as a this criminal prosecution.
II that,- The the denial of chal argues assuming was harmless because for cause was the error lenge improper, sug Sheeran never on the Jacobs actually jury. Justice sat in his concurrence that the defendant is not entitled to gests a new absent an express jury trial “the showing him was convicted not or that its truly one impartial was in verdict anywise unjust with the conformity Ante evidence”. at 65. think do not suf ficient answer to defendant’s he was charge that denied the under the circumstances of opportunity select a case to fair and impartial his satisfaction as contemplated our criminal procedures. indicates, The majority elaboration, without that if there error were rejecting cause, encroachment on resulting defend ant’s full complement of peremptories “would serious merit consideration this Court”. Ante at 62. of the importance peremptory challenge process fair selecting impartial jury cannot be We ignored.
squarely recognized its in significance Wright v. Bernstein stated, where denial we “The of the of right chal peremptory denial of a substantial Id. lenge right.” 23 N. J. at 295.
80 are not Although challenges constitutionally peremptory Alabama, 219, U. S. mandated, 202, Swain v. 380 S. 85 Ct. 759, L. Ed. 772 Stilson v. United 824, 835, 13 (1965); 2d L. Ed. 586, 28, 1154, 250 U. S. 40 S. Ct. 63 States, 30, State, Brown v. 62 N. J. & A. 1156 L. 678 (E. (1919); have in 1899), we their this State acknowledged importance rule. N. J. S. A. through 2A:78-7,(c); and Court legislation B. im 1:8-3 Our albeit laws and rules are (d). designed, that, to the perfectly, to assure the of a jury empanelling greatest extent satisfaction possible and the reasonable will the evidence parties, reach its verdict solely complete fairness and impartiality. of the
The
tools
one
utility
peremptory challenges
the United
emphasized by
selection has been
strongly
Alabama,
There,
States
supra.
Court
Swain
Supreme
the Court
out that
have been
pointed
peremptory challenges
of criminal
for over six
integral aspect
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years
hundred
and continue
employed
to be universally
U. S.
Id.,
380
every
212-219,
state
this
country.
S. Ct. at
L.
831-835, 13
Ed. 2d at 768-772. Courts
re
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g.,
United States v.
566 F.
Allsup,
2d 68
Cir.
United
(9
1977);
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States v.
A view of actual requiring showing prejudice in a case such as the functional misapprehends role of challenges the selection of assuring a proper jury and mis- conceives the for which purpose such challenges are intended. of the technique peremptory challenge recognizes that
81 of fairness and im respect the evaluation jurors or infallible. It sure, precise never be therefore partiality can counsel, decisions selection of jury process factors into the from the client’s vantage which can be exercised point and control. judgment interest of the court’s independently Alabama, 836, 220, v. 380 U. S. 85 S. Ct. at supra, Swain Smith, cert. 772; 483, 13 L. Ed. N. J. 476, 2d at 55 Ed. 232, den. 400 91 27 L. U. S. S. Ct. 2d 256 (1970); Bernstein, v. 23 N. J. at 293. trial Wright supra, Since the court con has the primary independent responsibility duct examination and ferret out prospective jurors latent as well as obvious and to excuse so prejudice any juror tainted, the com counsel serves as a peremptory challenge by plementary device used in court conjunction pro with the duce a jury suited to case. reasonably try particular
In the case, context of po cannot subscribe to the sition that the wrongful infringement right peremp tory was harmless ab challenge require and does not reversal sent some further of actual Justice Jacobs showing prejudice. in concurrence notes that correctly two our leading jury Bernstein, cases, selection v. Wright supra and State v. Jackson, supra, Sheeran, controversial unlike juror, ac tually sat on the jury. distinction, That though significant, Deatore, determinative all cases. In v. State supra, defense counsel in an armed ex robbery trial was forced to cuse from panel by exercise of a peremptory who challenge juror should have been rejected be for cause cause acquainted she was with the victim of the rob armed held, It bery. with the unanimous agreement of every member of the Court that, on this since point, the trial court failed to examine the more searchingly as to potential for bias, there was an improper intrusion on the right constituted “fundamental er Id., ror” a reversal. N. requiring 70 J. at 105. We consistently recognized that certain so errors'“‘go * * * to the of the
plainly integrity proceedings a new
82 Simon, N. J. 79 supra, ”. State v. is the course’ just Macon, v. State 338 205; (1971); den. certif. Div.), Super. N. J. (App. Harper, Gransamer, N. J. Meszaros 65 N. J. 574 see (1974); *23 J., This concurring). C. 179, 191-192 (1957) (Weintraub, should be error of harmless “the rule Court has noted that with breach caution in dealing with only great summoned a to assure ‘designed safeguards of fundamental procedural Also, Simon, J. 206. v. 79 N. at supra, fair trial’ ”. State Error 81 Cameron The Biddle Harmless (1970); Traynor, of Harmless”, 1971 Error Osborne, & “When Harmless Isn’t Jackson, State v. 23, 40; supra; Law-& The Order Soc. see Deatore, as a challenge v. The supra. State peremptory cf. in the proper component is important procedural safeguard to with the right in stature trial of a criminal case. It ranks N. J. Super. v. 142 Thompson, for cause. State challenge Cf. can, does, 274, Div. its exercise 1976); 280 (App. Diamond, “The trials, Zeisel and affect outcome of jury An and Yerdict: Jury Effect of Peremptory Challenges L. Bev. 491 Court”, in a Pederal District 30 Stan. Experiment full and unless be “‘exercised with it allowed to ,(1978) * * * Alabama, full Swain v. freedom of its purpose’ it fails ”. 219, 772; 380 U. S. 85 S. L. Ed. 2d 835, at Ct. at 13 at supra, States, 370, 378, Lewis v. 13 Ct. United U. S. S. L. 139, 36 Ed. 1014 (1892). us, the denial
In the circumstances before to defendant the full of choice accorded the allowance of the range jurors constituted right challenge peremptorily reversible conclusion, this error. In share the concern reaching by Justice Jacobs to the expressed respect speedy and 67-68, administration of Ante justice, efficient at and I wholeheartedly his admonition that judicial endorse contest new is not a and that trials are sporting not to be for harmless violations. procedural Wright See v. granted Bernstein, J. J., at 297 (Jacobs, 23 N. supra, dissenting). case, however, was violation in not trivial. Defendant did not as matter engage peremptory challenges or as a tactical “gamesmanship” ploy engineer reversal. Mathis, 47 N. J. 466-468 (1966); Cf. J.
Harper, supra, Super. N. Bern 276-278; at Wright stein, supra, at 295. He had exercised in already careful and conscientious manner eighteen his twenty allotted peremptories before Sheeran was called the jury box. “a rest on a Although can good reason, a id. at reason, or 293; bad no all”, see, reason at Alabama, Swain v. supra, 380 U. S. 85 S. Ct. 219-222, 835-837, 13 L. Ed. 2d at it is 772-773, clear that in this case defendant was not frivolous in exercising his peremptories. He had excused several jurors because evident potential for prejudice as a result of their involvement as victims crime and had acquiesced the court’s direct excusal cause of other jurors possibly biased virtue of a relation with law enforcement ship personnel. It was obvious that *24 voir dire sought participate fully and was bent on the selection jurors to his satisfaction to the full extent permitted by the rules. After Sheeran’s examination, defendant immediately and complete justification requested challenge cause and promptly protested its denial. denial, That coming as it did at the tail-end of the jury selection procedure, left defendant with almost no flexibility jurors reassessing sum previously moned from the of their standpoint comparative eligibility to remain on the panel to be from replaced the pool of prospective jurors. unfairly Defendant forced to expend a peremptory and excuse Sheeran and almost immediately thereafter his last challenge, exhaust dissipated all ing options.
Under the circumstances the obvious and fundamental error committed trial court ought not be passed off. affirm the Appellate Division, reversing the con- viction and for a remanding new trial. Justice
The Chief and Justice Clifford join dissent. Jacobs, Mountain,
For reversal—Justices Pashman SCHBEIBEB—4. Hughes
For Justice Justices Clif- affirmance —Chief ford and Handles. —3. JERSEY, PLAINTIFF-RESPONDENT,
STATE OF NEW BENDER, P., JEROME R. DEFENDANT-APPELLANT. Argued May January 23, 1979 Decided 1979.