State v. Grillo

• Citation: 106 A.2d 294,16 N.J. 103
• Decision Date: 28 June 1954
• Docket Number: Nos. A--159 and A--160,s. A--159 and A--160
• Parties: STATE v. GRILLO. STATE v. DE VITA.
• Court: United States State Supreme Court (New Jersey)

Page 103

16 N.J. 103

106 A.2d 294

STATE v. GRILLO.

STATE v. DE VITA.

Nos. A--159 and A--160.

Supreme Court of New Jersey.

Argued June 7, 1954.

Decided June 28, 1954.

George R. Sommer, Newark, for appellant Joseph Grillo.

Harry Kay, Newark, for appellant Silvio De Vita.

Charles V. Webb, Jr., Essex County Pros., Newark, for respondent (C. William Caruso, Sp. Asst. Pros., Newark, of counsel, on the brief).

The opinion of the court was delivered by

BURLING, J.

These two appeals certified under R.R. 1:10--1(b) were from two comparable orders of the Essex County Court denying motions for new trial made by the defendants-appellants, Joseph Grillo and Silvio De Vita. The crime of which these defendants had been convicted was murder, in the first degree.

On November 9, 1951, James Law, a special officer, was shot and killed during a robbery perpetrated as he was escorting a supermarket manager from his store to a bank with the day's receipts. The facts concerning this robbery appear in more detail in the opinion of this court in State v. Grillo, 11 N.J. 173, 93 A.2d 328 (1952).

On February 25, 1952 these defendants, Joseph Grillo and Silvio De Vita, and a third individual Ralph Rosania, were placed on trial for the killing of James Law. The indictments charged each of them with commission of the offense of murder in the first degree. On March 8, 1952 all three were convicted of that offense. The jury recommended life imprisonment as to Rosania but made no recommendation as to Grillo and De Vita.

Grillo and De Vita appealed. Their convictions were sustained by this court on December 15, 1952. State v. Grillo, supra (11 N.J. 173, 93 A.2d 328 (1952)), certiorari denied, De Vita v. State of New Jersey, 345 U.S. 976, 73 S.Ct. 1123, 97 L.Ed. 1391 (1953). Subsequently De Vita sought release upon a writ of Habeas corpus. After a hearing, on July 14, 1953, the Superior Court, Law Division, discharged the writ. In re De Vita, 27 N.J.Super. 101, 98 A.2d 716 (Law Div.1953). This judgment was affirmed by this court on October 19, 1953. In re De Vita, 13 N.J. 341, 99 A.2d 589 (1953), certiorari denied, De Vita v. State of New Jersey, 346 U.S. 923, 74 S.Ct. 309, 98 L.Ed. --- (1954).

On March 25, 1954 defendant Grillo moved for new trial, asserting that he had been 'denied due process of law in that he was tried by a jury which could not have heard the case if the facts now known had been revealed at the time the jury was selected.' The facts alleged were that Arthur Kuhnle, one of the jurors, during the night of March 30, 1951 (almost 11 months prior to the trial of Grillo, De Vita and Rosania for participation in the Law killing) had been the victim of a street robbery at gunpoint. A newspaper article, indicating on its face that it was published on the day of the robbery of Kuhnle, was attached as an exhibit to Grillo's motion papers. This newspaper article named and identified an Arthur Kuhnle as a night manager of a Western Union office and gave a detailed account of the affair. The record shows that the juror Arthur Kuhnle stated on the Voir dire prior to being accepted as a juror in the Grillo-De Vita-Rosania trial, that he, Kuhnle, was employed by the 'Western Union Telegraph Company' as a 'Night manager.' At the hearing on Grillo's motion for new trial on March 25, 1954 the State and Grillo's counsel stipulated that the argument proceed with the understanding that Arthur Kuhnle and the alleged victim of the March 30, 1951 robbery were the same individual, 'subject to verification.' Although this was unusual procedure we do not find it necessary to remand these matters for formal verification of that fact.

The transcript of the proceedings of the trial of Grillo, De Vita and Rosania, relating to the examination of jurors was 'Received in evidence' on 'Grillo's motion. After examination of the transcript and after hearing argument on the motion, the Essex County Court denied the motion on March 25, 1954.

Counsel for De Vita had been present in the County Court during the proceedings on Grillo's motion. On April 15, 1954 De Vita made a comparable motion for new trial. An affidavit was filed on De Vita's motion in which the affiant stated, 'My inquiries confirm the fact that Arthur Kuhnle, is the same person who sat as juror No. 5 in the trial of this cause * * *.' Counsel for De Vita, at the hearing on the motion on April 15, 1954, stated that he had been present at the argument of Grillo's motion on March 25, 1954 and had no desire to argue his motion any further. The Essex County Court denied De Vita's motion for new trial on April 15, 1954.

Grillo and De Vita in their present separate appeals each stated only one question involved, namely, whether the trial court erred in denying his motion for new trial. We find no error.

The contentions of Grillo and De Vita depend upon the facts hereinbefore recited resulting from the record upon the motions and the trial proceedings. On page 49 of the transcript of the trial proceedings it appears that a prospective juror Clifford L. Gould (later excused by the state) on the Voir dire was asked: 'Has anyone ever attempted to commit a robbery against you or any other member of your family?' Gould's answer was 'No, sir.' Gould was the sixth prospective juror to be examined under oath, and the only one of the first ten prospective jurors so examined who was asked such a question (Kuhnle being the tenth examined under oath). In all, 80 prospective jurors were examined. Thirty-three were comprehensively examined, the remainder were partially examined. Of the 33 comprehensively examined only seven were questioned as to whether they or members of their family had ever been robbery victims. Of the 33, 14 were sworn as trial jurors; of these 14, only three had been asked the question relating to robbery attempts on them or their families. The examination of Arthur Kuhnle began at page 69 of the transcript of the trial proceedings. Examination of Kuhnle by Grillo's counsel included the following:

'Q. Have you read anything about this case? A. Yes, I have.

'Q. As a result of what you have read in the newspapers have you any firm, imbedded conviction as to the innocence or guilt of the defendants in this case? A. No, I have not.

'Q. Can you, if selected as a juror, approach this case with an open mind? A. I can.

'Q. Would you, if selected as a juror, give the defendants the benefit of any reasonable doubt that might arise from the evidence? A. Yes, sir.

'Q. Do you know of any reason why you cannot sit as a juror in this case? A. No, I know of none.'

'Q. Does the fact that the person who was killed happened to be a special officer create in your mind any prejudice against the defendants? A. No.

'Q. Can you, if selected, try this case without any prejudice, without any passion against the defendants, and with a clear, open mind decide it fairly upon the evidence? A. Yes, sir.'

Examination of Kuhnle by De Vita's counsel included the following:

'Q. You heard the interrogations this morning, did you not? A. Yes, sir.

'Q. And I assume you followed them? A. Yes.

'Q. Let me repeat to you my position with reference to the client I represent, Mr. De Vita. I am interested in only one thing in this inquiry into the competency of the jurors and that is that the jury who finally occupy the box to try this case is open minded, free of any prejudice of any kind, nature or description whether it be because the man who was killed was a policeman or an officer of the law, whether the nationality of the defendants--anything at all that you might think of that would prejudice you? A. I would have no prejudice at all.

'Q. You think you could approach this case which is under consideration: that is, that there are three defendants all charged under the theory of the State's case with murder in the first degree. I think the evidence will show that one of the three is the man who actually fired the shot which killed Mr. Law. Do you think you will be able as a juror to differentiate between the three defendants and, if you find all three guilty of murder in the first degree, be able to follow the second part of your right, namely to recommend life imprisonment for one or two or all three of them notwithstanding the fact that one of them actually fired the shot? A. I think so.

'Mr. McGlynn: That's all.'

And examination of Kuhnle by Rosania's counsel included the following:

'Q. You formed no opinion of the guilt or innocence from reading the newspapers in this case? A. I have not.

'Q. Or from having discussed it with anyone? A. No, sir.

'Q. Your mind is free, open and unprejudiced? A. That's correct.

'Q. Will you accord the defendant Ralph Rosania and his witnesses under oath the same credibility that you would give police officers under oath? A. I would.

'Q. You don't know any of the State's officers or personnel? A. No, sir.

'Q. Do you know of any reason that you can give why you could not sit as a fair and impartial juror in this case and be guided only by the evidence and the charge of his Honor? A. I know of no reason, no.'

Upon the conclusion of the Voir dire examination Kuhnle was accepted as satisfactory by the State, and by each of the defendants. He was duly sworn and served as a member of the trial jury.

Grillo and De Vita now contend that Kuhnle, although not asked whether he had ever been a robbery victim, should have volunteered that information. They did not contend at the hearings on their motions for new trial that the answer 'yes' to such a question would establish a ground for a challenge for cause. Their contention reiterated on these appeals was that such an answer 'would have been sufficient basis for a peremptory challenge, because at the time that he was questioned, the defendants had plenty of challenges left.'

N.J.S. 2A:78--4, N.J.S.A. provides as follows:

'Upon the trial of any cause, civil or criminal, all parties may, within the discretion of the court, question any...