State v. Singletary

Handler, J.,

dissenting. Defendant was indicted, convicted by a jury and sentenced for committing an armed robbery of an employee of a Paterson tavern. When brought to trial, he endeavored through his attorney to secure a jury which would be, to his satisfaction, as fair and impartial as possible within the limits of the rules governing the selection of juries in criminal trials. His rights in this respect, however, were severely curtailed when, close to the end of the voir dire procedure, the trial judge turned down defendant’s *72 reasonable request to excuse for cause a prospective juror who had less than three weeks before been victimized by an armed robber; as a result, defendant was compelled to eliminate that juror by the use of his next-to-last peremptory challenge and, with the exercise of his last peremptory, to accept the jury as then empanelled. Under these circumstances, I would reverse the conviction and allow defendant to be retried.

It is important to recite in some detail the manner in which the jury which convicted defendant came to be empaneled. Defendant Singletary and another were indicted for the armed robbery on October 21, 1975. Juror selection at Singletary’s separate trial occurred over a two day period, on January 23 and 26, 1976. During the course of the voir dire examination of prospective jurors, the court, apparently on its own motion, excused for cause five prospective jurors, who either knew the owner of the tavern that had been robbed or were acquainted with witnesses for the State. Questioning during the voir dire also revealed that five veniremen had been crime victims or had close relatives who had been victimized by criminals. Defendant exercised peremptory challenges against four of these.

After defendant had already exercised eighteen of his allotted twenty peremptory challenges a prospective juror by the name of Sheeran was called. The voir dire examination of Sheeran unfolded as follows:

Q. Have you been the victim of a crime?

A. Yes.

Q. Will you tell me when, and the nature?

A. I work for a bank in New York City and it was held up on January 9th.

Q. January 9th of this year?

A. Of this year, yes, sir.

Q. Do you feel that that particular event, having been so recent, would have any effect on your ability to sit as a fair and impartial juror in this case?

A. No, I do not.

Q. Has any other member of your family been the victim of a crime?

*73 A. My sister-in-law was murdered last year, May 22nd, 1975.

Q. How about that particular event, do you feel that the existence of that event would affect your ability to sit as a fair and impartial juror?

A. No, it would not.

‡ >'fi *

There then followed a dozen standard, general questions unrelated to these crimes to which the answers, taken at face value, acknowledged no prejudice or bias on the part of Sheeran.

With the response to the last question, the State pronounced the jury satisfactory. Defense counsel immediately requested to be heard at side bar, i. e., beyond the jury’s hearing. An off the record discussion ensued, during which the court indicated that it would not grant defendant’s challenge for cause. (We note parenthetically that such a discussion should not have been off the record. B. 1:2-2; State v. Green, 129 N. J. Super. 157, 166 (App. Div. 1974)). Apparently at the instigation of defense counsel, the court then inquired whether Sheeran was an actual victim or merely a spectator at the robbery seventeen days before:

Q. Mr. Sheeran, in connection with the bank robbery, which you’ve mentioned which occurred just a few weeks ago, were you actually involved in that particular robbery—

A. Yes.

Q. (continuing) Or was it just a robbery in your particular branch?

A. No, I was involved in it.

Q. Was it an armed robbery?

A. Yes, it was.

Q. And do you feel that that particular circumstance, considering that this case involves a charge of robbery and being armed during the commission of the robbery, that that particular event so recently would not affect your ability in any way to sit on this case?

A. No, I do not.

The juror was not excused for cause by the court and defense counsel exercised his nineteenth peremptory challenge to remove Sheeran. The selection of the jury then concluded *74 rapidly. The next three veniremen were excused by peremptory challenge, two by the State and one — his last — by defendant. The court then initiated and held another conference (which was not, but should have been, on the record, i3.) and, after questioning of the next summoned juror, both sides pronounced the jury satisfactory and the jurors were sworn. Thereafter, defense counsel reiterated his objection that Sheeran should have been excused for cause and noted that he had been required to exercise all twenty of his peremptory challenges. This objection was not acted upon by the court. Following the jury trial defendant was found guilty of the charge.

I

With respect to whether there was cause for the trial court to excuse the controversial juror, I conclude, contrary to the majority, that, under the circumstances presented, there uncontestably was. The conclusion is bottomed upon the singular importance of a defendant’s right to a trial by a fair and impartial jury. “The jury is an integral part of the court for the administration of justice * * * The parties to [an] action are entitled to have each of the jurors who hears the case impartial, unprejudiced and free from improper influence.” State v. Simon, 79 N. J. 191, 199 (1979), quoting from Wright v. Bernstein, 23 N. J. 284, 294-295 (1957) and citing Panko v. Flintkote, 7 N. J. 55, 61 (1951). It has been repeatedly stressed that the legitimacy of our system of criminal jurisprudence depends on the fairness and integrity of the jury selection process. “Jurors must be [carefully] selected with an eye toward [s] ‘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. Deatore, 70 N. J. 100, 105-106 (1976); State v. Jackson, 43 N. J. 148, 157-158 (1964), *75 cert. den. sub nom. Ravenell v. New Jersey, 379 U. S. 982 , 85 S. Ct. 690 , 13 L. Ed. 2d 572 (1965).

The majority acknowledges, grudgingly, that “it might well have been the wiser course to have excused * * * [the juror] for cause”, but concludes that the “failure to do so” would not “necessitate [a] reversal on this ground alone”. Ante at 64. The question as it comes to us, however, is not whether it would have been strategically adroit for the trial court to have avoided the risk of reversal by excusing the troublesome juror. The circumstances of this case clearly spelled out reasons to believe that the juror could not likely have reacted neutrally to the charge being tried and he should have been excused by the trial court not as a matter of cunning but for good cause. The majority’s ruling that the juror need not have been excused for cause as a matter of trial court discretion is based not merely upon a different perception of undisputed evidence. It seems to represent an unwarranted retreat from the sound approach reflected in earlier decisions that found juror taint under circumstances no more compelling than those presented here. See State v. Jackson, supra (holding challenge for cause should have been granted against juror who was friend of state witness); Wright v. Bernstein, supra (reversible error where juror in accident case failed to disclose his mother was plaintiff in unrelated personal injury case); cf. State v. Deatore, supra (reversible error where court refused to question prospective juror concerning acquaintance with victim in case being tried).

In support of its position, the majority attempts to draw a distinction between jurors potentially biased because of a personal relationship with persons involved in the case and jurors, as here, who have had some direct or indirect personal experience as the victim of a recent crime similar to that being tried. The Court would impute prejudice in the first category of jurors but not the latter. Ante at 64. Many eases, however, have recognized the propriety of a challenge *76 for cause where there is reason to question a juror’s impartiality because of direct or indirect involvement as, or with, the victim of a crime; e. g., Salazar v. State, 562 S. W. 2d 480 (Tex. Cr. App. 1978) (juror where defendant was charged with indecency with child had witnessed sexual assault on own daughter); Pugh v. State, 376 S. W. 2d 760 (Tex. Cr. App. 1964) (juror in drunk driving trial had a best friend who was killed by a drunk driver a few days before); People v. De-Haven, 321 Mich. 327 , 32 N. W. 2d 468 (Sup. Ct. 1948) (jurors in statutory rape trial had relatives who had been convicted of same offense); Durham v. State, 182 Tenn. 577 , 188 S. W. 2d 555 (Sup. Ct. 1945) (juror in rape case had been prosecuting witness in assault with intent to rape case three years before); State v. Holliman, 529 S. W. 2d 932 (Mo. Ct. App. 1975) (juror was friend of victim in murder trial); Bailey v. Keaton, 104 Ohio App. 223 , 148 N. E. 2d 120 (Ct. App. 1957) (juror in bastardy trial had been plaintiff in prior bastardy case); United States v. Poole, 450 F. 2d 1082 (3 Cir. 1971) (observing it would be difficult to hold a robbery victim capable of objectivity in armed robbery case (dictum)); cf. Wright v. Bernstein, supra. I know of no primer on psychology or human behavior that enables this Court to differentiate as to potential for bias between jurors standing in some relationship to one side of a criminal prosecution and those who- have suffered recently at the hands of a criminal.

In this criminal prosecution for armed robbery, the trial judge was asked to excuse a juror who only seventeen days before had been involved in the sam-e type of crime. Additionally, it was revealed that the juror’s sister-in-law had been murdered only eight months before. The majority, nevertheless, appears to discount the significance of what undoubtedly was a trying ordeal for the juror in having been personally involved in an armed robbery and accords no weight to the added, aggravating fact that the juror’s sister-in-law had been recently murdered. Since the majority itself concedes that a juror may be potentially biased because of *77 “past experience”, Ante at 63, it is hard to reconcile its assertion that an imputation of bias in this case would rest on no more than “ ‘surmise and speculation’ ”, Ante at 63. It is difficult to imagine recent and vivid “past experiences” having a more obvious prejudicial impact upon a juror sitting through a trial of an armed robbery charge than those here related by Sheeran in the course of the voir dire examination.

The majority observes that “[t]rial courts are ‘vested with broad discretionary powers in determining the qualifications of jurors and [a judge’s] exercise of discretion will ordinarily not be disturbed on appeal’ ”. Ante at 62. Simply to characterize the ruling as discretionary, however, begs analysis. One may agree that a reviewing court should give substantial weight to a trial judge’s ability to observe a venireman’s demeanor and evaluate his credibility. See State v. Mathis, 52 N. J. 238, 248 (1964), rev’d on other grounds 403 U. S. 946 , 91 S. Ct. 2277 , 29 L. Ed. 2d 855 (1971). Nevertheless, where the potential for prejudice is sufficiently blatant, a court on review should not hesitate to intervene, assess the voir dire record independently, and, where necessary, hold that a challenge for cause should have been granted as a matter of law. Cf. Irvin v. Dowd, 366 U. S. 717, 723 , 81 S. Ct. 1639, 1643 , 6 L. Ed. 2d 751, 756 (1961); State v. Van Duyne, 43 N. J. 369, 386 (1964), cert. den. 380 U. S. 987 , 85 S. Ct. 1359 , 14 L. Ed. 2d 279 (1965).

We know that psychological conditioning may act subconsciously to impede a juror’s ability to reach a verdict solely upon the evidence before him. See State v. Simon, supra, 79 N. J. at 199 — 202. Only an exceedingly sanguine view of human nature would accommodate the notion that a recent robbery victim could divorce from his or her mind the emotional Tesiduum of such a personal trauma and be capable of objectivity in the trial of an armed robbery prosecution. Cf. United States v. Poole, supra, 450 F. 2d at 1084 . There is an undeniable ring of truth in Justice Wachenfeld’s dissent in State v. Grillo, 16 N. J. 103, 116 (1954):

*78 One 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.

At any rate what is critical is not actual prejudice on the part of the prospective juror. In considering a challenge for cause the question is not whether a prospective juror’s prior experience will, in fact, necessarily or inevitably prejudice him or her but, rather, whether there is a strong likelihood or probability grounded in human experience that such an individual will be, or indeed, will appear to be, prejudiced. Cf. State v. Jackson, supra. That substantial likelihood of prejudice is generated by the facts in this case. It is not blunted appreciably by the juror’s own, apparently lona fide profession of impartiality. As the United States Supreme Court noted in Irvin v. Dowd, supra, a juror may be sincere in insisting he will be fair and -impartial. Yet, the “psychological impact requiring such a declaration before one’s fellows is often its father”. 366 U. S. at 728 , 81 S. Ct. at 1645 , 6 L. Ed. 2d at 759 . This Court, too, has recognized that in some circumstances, “sincere [though a] disclaimer [of prejudice] may be At runs counter to human nature’” and “[flies] An the face of the plain reality of the courtroom’ ”. State v. Deatore, supra, 70 N. J. at 105-106; State v. Jackson, supra, 43 N. J. at 160. Empirical research tends to corroborate the belief that prospective jurors often subconsciously as well as consciously attempt to conceal their biases on voir dire. See Broeder, “Voir Dire Examinations: An Empirical Study”, 38 So. Calif. L. Rev. 503 (1965).

I would add that the trial court has a direct responsibility to conduct a proper and adequate examination of prospective jurors to assure the empanelling of a (fair and impartial jury. R. 1:8-3 (a); State v. Manley, 54 N. J. 259, 281-283 (1969); State v. Morales, 116 N. J. Super. 538, 541-542 (App. Div. 1971), certif. den. 60 N. J. 140 ,(1972). The trial court here did not see fit in discharging this responsi *79 bility to question Sheeran further as to the relevant circumstances surrounding the criminal incident which he related only after prodding by defense counsel. If there were any lingering doubts as to the capacity of these prior criminal events to leave a prejudicial imprint on the juror’s state of mind, notwithstanding his professed belief that he could try the case without bias, those doubts should have been dispelled by additional exploratory examination. See State v. Deatore, supra; cf. State v. Sims, 140 N. J. Super. 164, 172-173 (App. Div. 1976). Without such clarifying inquiry, the disclosures by the juror of recent crimes, which undoubtedly touched him, constituted sufficient cause for his disqualification to serve as a juror in this criminal prosecution.

II

The State argues that,- assuming the denial of the challenge for cause was improper, the error was harmless because Sheeran never actually sat on the jury. Justice Jacobs suggests in his concurrence that the defendant is not entitled to a new trial absent an express showing that “the jury which convicted him was not truly an impartial one or that its verdict was in anywise unjust or not in conformity with the evidence”. Ante at 65. I do not think that is a sufficient answer to defendant’s charge that he was denied the opportunity under the circumstances of this case to select a fair and impartial jury to his satisfaction as contemplated by our criminal trial procedures. The majority indicates, without elaboration, that if there were error in rejecting the challenge for cause, the resulting encroachment on defendant’s full complement of peremptories “would merit serious consideration by this Court”. Ante at 62.

The importance of the peremptory challenge in the process of selecting a fair and impartial jury cannot be ignored. We squarely recognized its significance in Wright v. Bernstein where we stated, “The denial of the right of peremptory challenge is the denial of a substantial right.” Id. 23 N. J. at 295. *80 Although peremptory challenges are not constitutionally mandated, Swain v. Alabama, 380 U. S. 202, 219, 85 S. Ct. 824, 835, 13 L. Ed. 2d 759, 772 (1965); Stilson v. United States, 250 U. S. 583, 586, 40 S. Ct. 28, 30 , 63 L. Ed. 1154, 1156 (1919); Brown v. State, 62 N. J. L. 666, 678 (E. & A. 1899), we have acknowledged their importance in this State through legislation and Court rule. N. J. S. A. 2A:78-7,(c); B. 1:8-3 (d). Our laws and rules are designed, albeit imperfectly, to assure the empanelling of a jury that, to the greatest extent possible and the reasonable satisfaction of the parties, will reach its verdict solely on the evidence with complete fairness and impartiality.

The utility of peremptory challenges as one of the tools of jury selection has been strongly emphasized by the United States Supreme Court in Swain v. Alabama, supra. There, the Court pointed out that peremptory challenges have been an integral aspect of criminal trial procedure for over six hundred years and continue to be universally employed in every state in this country. Id., 380 U. S. at 212-219, 85 S. Ct. at 831-835, 13 L. Ed. 2d at 768-772. Courts have repeatedly held that the improper denial of a challenge for cause which has the effect of depriving a defendant of his full entitlement of peremptories requires a reversal. See, e. g., United States v. Allsup, 566 F. 2d 68 (9 Cir. 1977); United States v. Nell, 526 F. 2d 1223 (5 Cir. 1976); Wasko v. Frankel, 116 Ariz. 288 , 569 P. 2d 230 (Sup. Ct. 1977); State v. Moore, 562 P. 2d 629 (Utah Sup. Ct. 1977); Breeden v. Commonwealth, 217 Va. 297 , 227 S. E. 2d 734 (Sup. Ct. 1976); State v. West, W. Va., 200 S. E. 2d 859 (Sup. Ct. 1973); State v. Land, 478 S. W. 2d 290 (Mo. Sup. Ct. 1972).

A view requiring a showing of actual prejudice in a case such as this misapprehends the functional role of peremptory challenges in assuring the selection of a proper jury and misconceives the purpose for which such challenges are intended. The technique of the peremptory challenge recognizes that *81 the evaluation of jurors with respect to fairness and impartiality can never be sure, precise or infallible. It therefore factors into the jury selection process the decisions of counsel, which can be exercised from the vantage point of the client’s interest independently of the court’s judgment and control. Swain v. Alabama, supra, 380 U. S. at 220, 85 S. Ct. at 836 , 13 L. Ed. 2d at 772 ; State v. Smith, 55 N. J. 476, 483, cert. den. 400 U. S. 949 , 91 S. Ct. 232 , 27 L. Ed. 2d 256 (1970); Wright v. Bernstein, supra, 23 N. J. at 293. Since the trial court has the primary and independent responsibility to conduct the examination of prospective jurors and ferret out latent as well as obvious prejudice and to excuse any juror so tainted, the peremptory challenge by counsel serves as a complementary device used in conjunction with the court to produce a jury reasonably suited to try the particular case.

In the context of this case, I cannot subscribe to the position that the wrongful infringement on the right of peremptory challenge was harmless and does not require reversal absent some further showing of actual prejudice. Justice Jacobs in concurrence correctly notes that in two of our leading jury selection cases, Wright v. Bernstein, supra and State v. Jackson, supra, the controversial juror, unlike Sheeran, actually sat on the jury. That distinction, though significant, is not determinative in all cases. In State v. Deatore, supra, defense counsel in an armed robbery trial was forced to excuse from the jury panel by the exercise of a peremptory challenge a juror who should have been rejected for cause because she was acquainted with the victim of the armed robbery. It was held, with the unanimous agreement of every member of the Court on this point, that, since the trial court failed to examine the juror more searchingly as to potential for bias, there was an improper intrusion on the right of peremptory challenge which constituted “fundamental error” requiring a reversal. Id., 70 N. J. at 105.

We have consistently recognized that certain errors'“‘go so plainly to the integrity of the proceedings that * * * a new *82 trial is the just course’ ”. State v. Simon, supra, 79 N. J. at 205; State v. Macon, 57 N. J. 325, 338 (1971); State v. Harper, 128 N. J. Super. 270, 278 (App. Div.), certif. den. 65 N. J. 574 (1974); see Meszaros v. Gransamer, 23 N. J. 179, 191-192 (1957) (Weintraub, C. J., concurring). This Court has noted that “the rule of harmless error should be summoned only with great caution in dealing with the breach of fundamental procedural safeguards ‘designed to assure a fair trial’ ”. State v. Simon, supra, 79 N. J. at 206. Also, Traynor, The Biddle of Harmless Error 81 (1970); Cameron & Osborne, “When Harmless Error Isn’t Harmless”, 1971 Law-& The Soc. Order 23, 40; see State v. Jackson, supra; cf. State v. Deatore, supra. The peremptory challenge as a procedural safeguard is an important component in the proper trial of a criminal case. It ranks in stature with the right to challenge for cause. Cf. State v. Thompson, 142 N. J. Super. 274, 280 (App. Div. 1976); its exercise can, and does, affect the outcome of jury trials, Zeisel and Diamond, “The Effect of Peremptory Challenges on Jury and Yerdict: An Experiment in a Pederal District Court”, 30 Stan. L. Bev. 491 ,(1978) and unless it is allowed to be “‘exercised with full freedom * * * it fails of its full purpose’ ”. Swain v. Alabama, supra, 380 U. S. at 219, 85 S. Ct. at 835 , 13 L. Ed. 2d at 772 ; Lewis v. United States, 146 U. S. 370, 378 , 13 S. Ct. 136, 139 , 36 L. Ed. 1011, 1014 (1892).

In the circumstances before us, the denial to defendant of the full range of choice accorded by the allowance of the right to challenge jurors peremptorily constituted reversible error. In reaching this conclusion, I share the concern expressed by Justice Jacobs with respect to the speedy and efficient administration of justice, Ante at 67-68, and I endorse wholeheartedly his admonition that a judicial trial is not a sporting contest and that new trials are not to be granted for harmless procedural violations. See Wright v. Bernstein, supra, 23 N. J. at 297 (Jacobs, J., dissenting). The violation in this case, however, was not trivial. Defendant *83 did not engage in peremptory challenges as a matter of “gamesmanship” or as a tactical ploy to engineer a reversal. Cf. State v. Mathis, 47 N. J. 455, 466-468 (1966); State v. Harper, supra, 128 N. J. Super. at 276-278; Wright v. Bernstein, supra, 23 N. J. at 295. He had already exercised in a careful and conscientious manner eighteen of his twenty allotted peremptories before Sheeran was called to the jury box. Although “a peremptory challenge can rest on a good reason, a bad reason, or no reason at all”, id. at 293; see, Swain v. Alabama, supra, 380 U. S. at 219-222, 85 S. Ct. at 835-837 , 13 L. Ed. 2d at 772-773 , it is clear that in this case defendant was not frivolous in exercising his peremptories. He had excused several jurors because of evident potential for prejudice as a result of their involvement as victims of crime and had acquiesced in the court’s direct excusal for cause of other jurors possibly biased by virtue of a relationship with law enforcement personnel. It was obvious that defendant sought to participate fully in the jury voir dire and was bent on the selection of jurors to his satisfaction to the full extent permitted by the rules. After Sheeran’s examination, defendant immediately and with complete justification requested a challenge for cause and promptly protested its denial. That denial, coming as it did at the tail-end of the jury selection procedure, left defendant with almost no flexibility in reassessing jurors previously summoned from the standpoint of their comparative eligibility to remain on the panel or to be replaced from the pool of prospective jurors. Defendant was unfairly forced to expend a peremptory challenge and excuse Sheeran and almost immediately thereafter dissipated his last challenge, exhausting all options.

Under the circumstances the obvious and fundamental error committed by the trial court ought not be passed off. I would affirm the Appellate Division, reversing the conviction and remanding for a new trial.

*84 The Chief Justice and Justice Clifford join in this dissent.

For reversal — Justices Mountain, Jacobs, Pashman and SCHBEIBEB — 4.

For affirmance — Chief Justice Hughes and Justices Clifford and Handles. — 3.