State v. Abernathy

• Decision Date: 17 November 1975
• Citation: 137 N.J.Super. 83,347 A.2d 813
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. William ABERNATHY, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 83

137 N.J.Super. 83

347 A.2d 813

STATE of New Jersey, Plaintiff-Respondent, v. William ABERNATHY, Defendant-Appellant.

Superior Court of New Jersey,

Appellate Division.

Submitted Nov. 5, 1975.

Decided Nov. 17, 1975.

Stanley C. Van Ness, Public Defender, for defendant-appellant (Randall W. Westreich, Asst. Deputy Public Defender, of counsel and on the brief).

William F. Hyland, Atty. Gen., for plaintiff-respondent (Lois De Julio, Deputy Atty. Gen., of counsel and on the brief).

Before Judges HALPERN, CRANE and MICHELS.

The opinion of the court was delivered by

HALPERN, P.J.A.D.

Defendant appeals from a judgment of conviction, entered on a jury verdict, finding him guilty of simple assault and battery and assault with a dangerous weapon. On this appeal he presents four issues which he asserts require a reversal. We disagree and affirm.

The uncontradicted proofs presented by the State (defendant did not testify) warranted the jury's finding the following facts: On February 18, 1974 defendant, while in a drunken condition at his parents' home, threatened bodily harm to his sister with a six-inch-long pair of scissors, causing her to take refuge in the bathroom. Subsequently, defendant's mother called the police to get him out of the house. After the police arrived defendant lunged at his sister and stabbed or cut her with the scissors. She was treated for a puncture wound at a hospital and released.

I

Defendant contends his motion for a mistrial should have been granted. He argues he had not been informed that five of the jurors on the panel who convicted him had been part of a prior panel, in a case tried by the same assistant prosecutor, who had convicted another defendant for atrocious assault and battery. He asserts this infringed his right to peremptorily challenge these five jurors under R. 1:8--3(d) and N.J.S.A. 2A:78--7.

We see no merit to the contention. Motions for a mistrial are directed to the sound discretion of the trial judge, and will not be upset absent a showing of a mistaken or arbitrary exercise of that discretion which results in manifest injustice. State v. Di Rienzo, 53 N.J. 360, 383, 251 A.2d 99 (1969); State v. Witte, 13 N.J. 598, 611, 100 A.2d 754 (1953), Cert. den. 347 U.S. 951, 74 S.Ct. 675, 98 L.Ed. 1097, reh. den. 347 U.S. 994, 74 S.Ct. 849, 98 L.Ed. 1127 (1954). We know of no sound reason why petit jurors selected to serve for a stated period of time should not be permitted to sit on whatever unrelated cases are presented to them, even though the same attorneys, State or defense, may be involved. Casias v. United States, 315 F.2d 614 (10 Cir. 1963), Cert. den. 374 U.S. 845, 83 S.Ct. 1901, 10 L.Ed.2d 1065 (1963). If defense counsel feels a juror may be unfavorable to his client because of his prior service, following Voir dire questioning, he may challenge him peremptorily. If the juror indicates prejudice, he may be challenged for cause. The State is under no obligation, even if it happens to know of a juror's prior service, to inform defense counsel of that fact. The views herein enunciated were ably expressed in Haussener v. United States, 4 F.2d 884, 886 (8 Cir. 1925) thusly:

The situation thus presented is novel and anomalous, and it is too plain for argument that no such procedure ought to be held reversible error, unless in the presence of an examination which shows that the attitude of the jurors is such as to preclude a fair and impartial trial, beyond cavil or question. This is so, because in the very nature of the situation practically all prosecutions for violations of the Volstead Act (Comp.St.Ann.Supp.1923, § 10138 1/4 et seq.) must be bottomed upon the testimony of prohibition agents. If, when one case has been tried, the entire panel of jurors sitting therein is disqualified from sitting as jurors in every other case of a similar sort, trial courts will be so far impeded in the transaction of their business as to make the enforcement of this act difficult, if not impossible. Such practice as was here resorted to, should be discouraged.

II

During the prosecutor's summation he referred to and compared facts in a prior case, in which the five jurors served, with the instant case. Defendant claims such reference was prejudicial. In addition, he asserts that reversible error was committed when (a) the prosecutor sought to curry favor with the jury by thanking them for their service, (b) in characterizing the scissors as a deadly weapon and (c) telling the jury that intoxication was not a defense to these charges.

We do not approve of the prosecutor's comments, or his statement as to the law of the case which is the trial judge's function. In fact, we disapprove his actions as uncalled for and in derogation of the conduct expected of a public prosecutor in the trial of a criminal case. However, we are unable to...