State v. Singletary

Clifford, J.

dissenting. Defendant was charged with armed rohhery. Seventeen days before Kenneth J. Sheeran’s being called to serve as a juror in this case he was “personally involved” in an armed robbery of the New York bank where he was employed.

In addition, eight months before trial Sheeran’s sister-in-law was murdered.

My view quite simply is that had this venireman sat as a juror, the deck would have been stacked against defendant or at the least ■ — • and equally to be avoided — would have given the appearance of being stacked, and that under the circumstances the trial court’s disallowance of a challenge for cause amounted to a mistaken exercise of discretion calling for a reversal of the conviction. The trial court’s ruling, apparently made in reliance upon Sheeran’s stated belief that he could nevertheless remain impartial, required defense counsel to use one of his two remaining peremptory challenges to excuse this venireman. Shortly thereafter defendant exhausted his allotment of twenty peremptory challenges (N. J. 8. A. 2A:78-7(c), B. 1:8-3 (d)) before the jury was empanelled. His compelled use of a peremptory *69 challenge to achieve what should have followed from his challenge for cause deprived him of one of his allotted peremptories. He was entitled to twenty and was in effect accorded but nineteen. That, in a word, is the rub.

The case poses two issues: first, whether the trial court’s refusal to excuse juror Sheeran for cause constituted an abuse of discretion under these circumstances, namely, where after eighteen peremptory challenges had been used, defendant contended that the venireman’s victimization by an armed robber a scant two and a half weeks before being called to decide an armed robbery case disqualified the victim as a juror; and second, if the trial court’s discretion in that regard was mistakenly exercised, whether the reduction in the number of peremptory challenges resulting from the erroneous denial of a challenge for cause entitles defendant to a new trial.

As to the first question, the majority properly points out that in State v. Grillo, 16 N. J. 103 (1954), this Court found no prejudice in allowing a juror who eleven months before trial had been held up at gunpoint to sit in an armed robbery felony murder prosecution. Justice Waehenfeld’s dissenting view did not carry the day:

[O]ne who has been assaulted, threatened with a deadly weapon and robbed is not likely to forget or forgive nor to treat lightly or even fairly similar conduct in others. This is a normal human reaction following customary behavior, expected and anticipated by the background of experience.

[ 16 N. J. at 116.]

While I happen to agree entirely with Justice Wachenfeld’s position, we can, and for today’s purposes probably should, leave Grillóos holding unimpaired and simply distinguish that case on the ground that here the two crimes were both more similar in nature and more closely related in time.

Notwithstanding Grillo, however, more recent cases, likewise readily distinguishable both on 'their facts and on their holdings, point unmistakably to the course we should take in *70 this case. From State v. Jackson, 43 N. J. 148 (1964), and State v. Deatore, 70 N. J. 100 (1976), both discussed in some detail in the opinions of the court below, State v. Singletary, 156 N. J. Super. 303 (App. Div. 1978), we can tease out a common theme, a broad guiding principle, to the effect that “jurors must be carefully selected with an eye towards their ability to determine the controverted issues fairly and impartially” and “the trial court should see to it that the jury is as nearly impartial ‘as the lot of humanity will admit/ ” State v. Jackson, supra, 43 N. J. at 157-58; accord, State v. Deatore, 70 N. J. at 105-06. Nor does the obvious differentiating feature of Jaclcson and Deatore, wherein the tainted juror sat whereas here he was not part of the final jury, serve to dilute the force of the stated underlying, guiding principle.

Furthermore, quite apart from any prejudice in fact visited upon a defendant by disallowing his challenge for cause is the effect of such a ruling on the appearance of justice. As the Court observed in Jaclcson, in sustaining the challenge for cause in that case:

[I] should have been honored, if for no other reason than to insure [the defendant’s] confidence in the basic fairness of the trial. In any sound judicial system it is essential not only that justice be done but that it appear to be done.

[ 43 N. J. at 160-61.]

Thus in my view Jaclcson dictates that the defendant must have the benefit of any doubt where a juror’s impartiality is brought into question by defendant’s challenge for cause. Given venireman Sheeran’s experience, including not only his recent victimization at the hands of a bank robber but also the murder of his sister-in-law, it was the disregard of that principle which led the trial court into error.

But, one might ask, what harm was done here? Even if the trial court was wrong in not granting a challenge for cause, Sheeran did not‘sit as a juror because defendant exercised a peremptory challenge, so the jury that eventually *71 returned a verdict was untainted. Iiow has defendant been prejudiced ?

There is no New Jersey case which supplies the answer. It lies, I think, for the most part in the importance one attaches to the attainment of a fair and impartial jury and to the process available to achieve that end. I tend to view that process .(without for a moment suggesting that any member of this Court feels otherwise) as considerably more than a procedural formality. The right to be tried by a fair and impartial jury is a “fundamental” one to be “jealously guarded,” Wright v. Bernstein, 23 N. J. 284, 295 (1957). Our rules are carefully, albeit imperfectly, designed to assure the empanel-ling of a jury that to the greatest extent possible will reach its verdict on the evidence with absolute fairness and complete impartiality. Hence in a criminal case such as this one defendant is afforded twenty opportunities to excuse any venireman peremptorily — for a good reason, a bad reason, or no reason at all. See id. at 293. Any diminution of or infringement upon that legislatively granted opportunity deprives defendant of as fair a trial as our rules permit. Defendant’s argument here, with which I agree, is that his claim of error derives from his due process guarantees and from our standards of fair trial, whereas his entitlement to relief springs from the legislative grant of twenty peremptory challenges and his right thereto, which he was denied.

I would affirm the Appellate Division’s reversal of the conviction and remand for a new trial.