State v. ThompsonState v. Thompson
After a jury trial defendant was convicted of rape (
Among the appellate contentions asserted by defendant are: (1) he was deprived of his Sixth Amendment right to effective assistancе of counsel; (2) the verdict was against the weight of the evidence, and (3) the sentence was manifestly excessive. We have considered these contentions and find them to be clearly without merit.
We are constrained, however, to reverse the conviction on another ground urged by defendant relating to the voir dire of one of the jurors who participatеd throughout the trial and the rendering of the verdict.
Approximately ten days after the verdict, one of the jurors forwarded a letter to the trial judge informing him that another juror, John Zaccaro, may have acted improperly. She pointed out that Zaccaro had informed the other jurors during their deliberations that he had served as a guard in a correctional institution about 25 years before and is presently serving on a juvenile hearing board in a municipality in the Trenton area. The writer expressed her concern over this revelation because when the jury panel was questioned on voir dire Zaccaro did not reveal these facts and because she noted that he made repeated referencеs in the jury room to his familiarity with criminals and how they act as a result of his prior dealings with them.
Upon receipt of this letter the trial judge conducted an in camera interview of the writer in the presence of both counsel. At this time the juror repeated in substancе the facts contained in the letter. Thereafter defendant‘s motion for a new trial was denied.
The record reveals that the court submitted the following questions to the jury panel on the voir dire examination:
Are you presently employed in any law enforcement work at any level of government whether State, municipal, county, et cetera, are you presently emplоyed in any law enforcement work?
Have you ever in the past been employed in any such law enforcement work at any level of government?
The trial judge, in denying a new trial, based his determination on a finding that the juror‘s failure to respond to the question in light of his employment and current participation as a juvenile counsellor was probably the result of misunderstanding or inadvertence. The judge reasoned that the absence of deliberаte deception by the juror negated any inherent prejudice on his part. Finally, he concluded that the jury and jury deliberations were not tainted through any demonstrable influence of Zaccaro upon the determination of his fellow jurors so as to prejudice defendant by deprivation of a fair trial by an impartial jury.
Manifestly, a finding either way on any of these fact issues could only be made after a full inquiry of not only the affected juror but all the members of the jury panel. The trial judge apparently avoided such an inquiry because of the applicable rule restricting parties and attorneys from interviewing jurors (
Nevertheless, it becomes unnecessary to determine this appeal on the impropriety of the judge‘s findings beсause of the factual deficiency of the record.
The key determinant is whether defendant has been deprived of a fair trial by jury by virtuе of his inability to exercise a peremptory challenge because of the failure of the juror to make a candid response to the inquiry relating to a significant fact of potential bias. There can be little question that a guard in a penal institution is generally associated with a field of work encompassed by the generic term of “law enforсement.”1 Participation in the Juvenile Court system on a hearing board may be more equivocal with reference to its identification as law enforcement work.
In any event, the question was clear and important in the context of the criminal issue involved, and the silence of the juror, whether deliberate or inadvertent, was misleading to defendant and prejudiсed him in a valuable incident of the trial process — the exercise of a peremptory challenge. See Photostat Corp. v. Ball, 338 F.2d 783, 785-786 (10 Cir.1964). Undoubtedly, if the information had been divulged, it is reasonable to assume that counsel for defendant would have challenged that juror on a peremptory basis even if a challenge for cause was unsuccessful.2 The right of a peremptоry challenge is as substantial as the right to a challenge for cause. The right to a fair and impartial jury is guaranteed by the Sixth Amendment of the Federal
In Wright v. Bernstein, supra, where a similar issue was at stake in the context of a civil case, the court observed:
The fundamental right of trial by a fair and impartial jury is jealously guarded by the courts. The jury is an integral part of the court for the administration of justice, and on elementary principles its verdict must be obedient to the court‘s charge based solely on legal evidence produced before it and entirely free from the taint of extraneous considerations and influencеs. The parties to the action are entitled to have each of the jurors who hears the case impartial, unprejudiced and free from improper influences. Panko v. Flintkote Co., 7 N.J. 55, 61, 80 A.2d 302 (1951).
What hаppened in this case had the effect of nullifying the purpose of the examination and was as effective as though the trial court had denied the right of challenge. The deniаl of the right of peremptory challenge is the denial of a substantial right. When it is not waived by conduct, it is prejudicial per se and harmful, and a party is not required to make an affirmative showing that the denial of his right to peremptory challenge had resulted in prejudice and injury to his cause of action on the merits. [23 N.J. at 294-295]
As the foregoing excerpt from Wright v. Bernstein points out, the denial of the right of peremptory challenge in the context of the subject matter of the question is “prejudicial per se and harmful“. In effect, the misleading silence of the juror herein amounted to a denial of the right of peremptory challenge — a substantial right in the concept of a fair and impartial trial. State v. Jackson, 43 N.J. 148, 162 (1964), cert. den. sub nom. Ravenell v. New Jersey, 379 U.S. 982, 85 S.Ct. 690, 13 L.Ed.2d 572 (1965). And, as such, it warrants a new trial even in the absence of a showing of actual prejudice.
Other сourts have reached the same result on a different basis. For example, the Third Circuit Court of Appeals in United States v. McCorkle, 248 F.2d 1 (1957), cert. den. 355 U.S. 873, 78 S.Ct. 121, 2 L.Ed.2d 77 (1957), in a proceeding arising out of a conviction affirmed by the
Regardless of the labels which may be applied in articulating the reasons for reversal of a criminal conviction resulting from a trial where a juror has failed to respond to a voir dire question patently addressed to the possible existence of bias, the result must be the same. Whеther the nondisclosure is designated as “prejudicial per se,” presumptively harmful or “colorable bias,” the conclusion is inescapable that defendant has been deprived of а fundamental right to a fair trial and that his conviction cannot stand.
We are mindful of the legal principle that a motion for a new trial is addressed to the sound discretion of the trial judgе and that his determination thereof will not be reversed on appeal in the absence of a showing of abuse of discretion.
Judgment is reversed and case remanded for new trial.