State v. Deatore

• Citation: 358 A.2d 163,70 N.J. 100
• Parties: STATE of New Jersey, Plaintiff-Appellant, v. James A. DEATORE and David J. Mallon, Defendants-Respondents. . Re
• Decision Date: 13 April 1976
• Court: United States State Supreme Court (New Jersey)

Page 100

70 N.J. 100

358 A.2d 163

STATE of New Jersey, Plaintiff-Appellant, v. James A. DEATORE and David J. Mallon, Defendants-Respondents.

Supreme Court of New Jersey.

Reargued Sept. 23, 1975.

Decided April 13, 1976.

See also, 70 N.J. 95, 358 A.2d 161. Richard W. Berg, Deputy Atty. Gen., for plaintiff-appellant (William F. Hyland Atty. Gen., attorney; Richard W. Berg, of counsel and on the brief).

Philip S. Elberg, designated attorney, Orange, for defendant-respondent James A. Deatore (Stanley C. Van Ness, Public Defender, attorney; Philip S. Elberg, of counsel and on the brief).

Alexander F. McGimpsey, Jr., New Brunswick, for defendant-respondent David J. Mallon (Stanley C. Van Ness, Public Defender, attorney; Orlando & McGimpsey, New Brunswick, designated attorneys, Stephen Orlando, Jr., New Brunswick, of counsel and on the brief).

The opinion of the Court was delivered by

HUGHES, C.J.

Having been tried jointly to a jury, defendants were convicted of armed robbery (N.J.S.A. 2A:141--1, N.J.S.A. 2A:151--5) of a store proprietor and a customer present in the store at the time. The Appellate Division reversed the convictions in separate unreported decisions, and we granted certification on petitions of the State. 63 N.J. 425, 307 A.2d 611 and 502, 308 A.2d 667 (1973). ¹

The appeals were argued in due course but we delayed decision in view of the pendency of a somewhat comparable case in which the United States Supreme Court issued its opinion on June 23, 1975. (United States v. Hale, 422 U.S. 171, 95 S.Ct. 2133, 45 L.Ed.2d 99). Counsel were invited to file supplemental briefs bearing on the significance (or otherwise) of Hale, and the appeals were then reargued.

The facts here are these: at the trial Deatore defended on the basis of alibi, asserting that at the time of the crime he was in the company of a woman in a motel room in the area. This evidence was presented through his own testimony and that of the alleged female companion. Mallon neither took the stand nor offered evidence in his defense. The proof of guilt of both defendants was overwhelming not only through identification by the victims but also by reason of much incriminating evidence, especially checks and credit and personal cards of the victims, found on a search, pursuant to a warrant, of the motel rooms occupied by defendants.

The Appellate Division reversed Deatore's conviction because the trial judge permitted the prosecution to ask him on cross-examination, over objection, a series of questions bearing on his failure to make any exculpatory statement to the police after he was arrested. Mallon's conviction was reversed because the court felt that 'the nature of the error was such as to affect and prejudice Mallon as well as Deatore in the light of surrounding circumstances,' although this ground had not been urged in Mallon's brief on appeal.

In its opinion in Deatore's case the Appellate Division discussed another issue. After the jury box had been filled the judge had asked the prospective jurors whether they knew counsel, the defendants or any of the State's proposed witnesses. One answered that she knew the customer-victim of the holdup 'personally and business.' The judge then inquired whether, in view of this acquaintanceship, she could 'render a verdict that would be free of any partiality or any prejudice * * *.' She replied that she could. At the conclusion of the court's Voir dire examination ² and before any peremptory challenges under R. 1.8--3(d) were exercised, ³ counsel for Deatore, at side bar, moved to dismiss the juror for cause. When this was refused, he asked leave to examine her on the extent of her relationship with the victim, knowledge of the crime committed against him and the like, which request was also summarily denied. Counsel then exercised a peremptory challenge and excused the juror. The matter of possible bias came up again during a Voir dire examination by the court after all defense peremptory challenges had been exhausted. Deatore's attorney suggested the potential partiality of a juror who mentioned two relatives my marriage employed as correction officers in a Pennsylvania state prison. He asked for an additional peremptory challenge by reason of the claimed erroneous denial of the challenge of the earlier juror for cause. This was likewise refused. Mallon's counsel joined in each of these motions.

Having in mind the basic right of every defendant to a fair and impartial trial, we have no doubt that the trial court committed fundamental error in its refusal to conduct or permit a further examination of the first juror in the circumstances, which error in itself requires reversal of the judgments of conviction of both defendants and remand for a new trial, and so affirmance of the Appellate Division in both cases (the point was not mentioned in the Mallon opinion although it was the principal ground of appeal urged). We adopt the language of the Appellate Division in Deatore spelling out the reason:

Once it was disclosed by (the juror) that she was acquainted with one of the robbery victims, it became the duty of the trial judge to himself explore or to permit counsel to explore with the juror the nature and extent of his acquaintance with the victim. Without such information, neither counsel nor the court could make an intelligent appraisal as to the likelihood of the existence of any bias, prejudice or partiality in favor of the State or in favor of the credibility of the victim. State v. Jackson, 43 N.J. 148, 157--161 (203 A.2d 1) (1964), Cert. den., 379 U.S. 982 (85 S.Ct. 690, 13 L.Ed.2d 572) (1965). Had such inquiry been made and revealed a close relationship, it is not enough that the juror disclaimed any partiality for, as the court observed in Jackson, sincere as the disclaimer may be 'it runs counter to human nature,' Id., at page 160 (203 A.2d 1). * * *

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. '' Jackson, at pages 157--158 (203 A.2d 1). Likely prejudice to the right of this defendant to a fair and impartial trial inhered in the failure of the trial court to heed this elementary principle. Wright v. Bernstein, 23 N.J. 284 (129 A.2d 19) (1957).

The sufficiency of a stated disclaimer of any partiality in circumstances such as here involved would not only seem to run "counter to human nature" as above, but to fly 'in the face of the plain reality of the courtroom.' Cf. State v. Miller, 67 N.J. 229, 245, 337 A.2d 36, 45 (1975) (Clifford, J., concurring and dissenting in part). See also Annotation, 'Social or business relationship between proposed juror and nonparty witness affecting former's qualification as juror,' 11 A.L.R.3d 859 (1967).

We add that the obvious and practical way to handle the situation of a prospective juror having connections with a party or witness which might possibly affect impartiality is to excuse the juror by consent at the outset, with that course suggested by the judge if counsel do not propose it. And if that arrangement is rejected, the trial judge should proceed with the supplemental interrogation above mentioned, or permit counsel to do so in his discretion, to test the legitimacy or necessity of excusal for cause.

Although both cases could be disposed of on the basis of this error, we note the vigorous contention of the State that its cross-examination of Deatore was proper and that the Appellate Division was wrong in reversing his conviction on that ground. Since the point raised is of general importance, is subject (as we shall note later) to a remarkable variance in judicial views, and should be settled so far as New Jersey courts are concerned, we will decide it on the merits; this, even though it might be said that the evidence of guilt was so strong that any trial error in this regard was harmless beyond a reasonable doubt. We should further say that we disagree with the Appellate Division's holding that the asserted error in the questioning of Deatore necessarily 'rubbed off' on Mallon and prejudiced him as well so as to require the reversal of his conviction on that ground. Our opposite view is based upon the overwhelming evidence of guilt on the part of Mallon, apart from an irrespective of silence or other conduct on the part of Deatore, rendering any possible effect on Mallon of the State's challenge of Deatore's silence, harmless error beyond a reasonable doubt. Compare State v. Davis, 67 N.J. 222, 228, 337 A.2d 33 (1975) With State v. Macon, 57 N.J. 325, 335--41, 273 A.2d 1 (1971). In this respect we distinguish the exposure of both defendants equally to prejudice resulting from the failure to probe the qualification of the first challenged juror to sit in impartial judgment.

As indicated, the questions involved here related to the matter of Deatore's silence and failure to voice exculpatory information to the police at or about the time of his arrest. These questions came in the course of cross-examination, after he had testified on direct that he was elsewhere at the time of the crime. He was asked whether he had made any statements to such effect to the police when he was arrested and later when he learned of the specific charge against him. His reply was that the only thing he remembered saying was that he wanted a receipt for the money taken by the police from his person. He denied that he told the police he had nothing to say, and the interrogation concluded with the prosecutor asking whether it was not so that he had refused to make any statement. ⁴ The answer was: 'Nobody asked me.' It may be added that while there was testimony by one of the arresting officers that 'defendant was read his rights' at police headquarters (which we interpret to mean that he was given the Miranda warning; Miranda v. Arizona, ...