State v. Hall

• Decision Date: 01 March 1982
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. James H. HALL, Jr., Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 224

183 N.J.Super. 224

443 A.2d 767

STATE of New Jersey, Plaintiff-Respondent, v. James H. HALL, Jr., Defendant-Appellant.

Superior Court of New Jersey, Appellate Division.

Argued Oct. 15, 1981.

Decided March 1, 1982.

Seymour Gelzer, East Brunswick, for defendant-appellant (Brigiani, Gelzer, Cohen & Schneider, East Brunswick, attorneys; John P. Sade, East Brunswick, on the brief).

Frederick S. Cohen, Deputy Atty. Gen., for plaintiff-respondent (James R. Zazzali, Atty. Gen., attorney; John J. Degnan, former Atty. Gen., and Frederick S. Cohen, on the brief).

Before Judges FRITZ, ARD and TRAUTWEIN.

The opinion of the court was delivered by

FRITZ, P. J. A. D.

Defendant was convicted by a jury of unlawful entry without breaking, armed robbery and unlawful possession of a dangerous weapon. He appeals. We affirm.

The most substantial of the seven issues forwarded by appellant as grounds for reversal centers around the pre-indictment requirement that Hall appear in a line-up. In this regard defendant relies solely on a trial court opinion, State v. Schweitzer, 171 N.J.Super. 82, 407 A.2d 1276 (Law Div.1979).

More for the purpose of disposing of a collateral matter than to attribute significance to it, we note at the outset a sharp factual distinction between Schweitzer and the matter before us. In Schweitzer it is perfectly obvious that the prosecutor, in seeking defendant's appearance in a line-up, was on an undertaking commonly characterized as a fishing expedition. He came to court equipped with nothing more than a forlorn belief that "the victim or a separate witness to the incident might be able to identify Schweitzer as the other assailant if given an opportunity to view him in a line-up. (Footnote omitted.)" 171 N.J.Super. at 84, 407 A.2d 1276. In the matter before us there was ample in the record to support Judge Lane's conviction that "the State (had) established a well-founded suspicion of sufficient weight" respecting the culpability of defendant in the crime under investigation.

Nevertheless, the judge in Schweitzer-while specifically finding an absence of "probable cause"-did not choose to rest his denial upon the absence of justifiable and sufficient cause, but rather rested his determination on a perceived lack of jurisdiction. Convinced that he had jurisdiction over neither the subject matter nor the person, he opined that issuance of the order being sought, constituting a "deprivation of liberty," would offend due process. We are satisfied that whatever other considerations come into play, this is neither a matter of jurisdiction nor one implicating an unconstitutional "deprivation of liberty."

It is not necessary for us to spend much time in dealing with the parochial view that both subject matter and personal jurisdiction in the judicial branch are marked at their extremities by the indictment and the imposition of sentence, the essence of Schweitzer. Were this thesis sound, many, if not most, search warrants would never have issued. It is to a judicial officer to whom application must be made before most searches can be made, and this procedure is not only compelled but available before indictment. State v. Kasabucki, 52 N.J. 110, 244 A.2d 101 (1968). Group fingerprinting, as a preindictment investigative tool which we have heretofore ordered in certain circumstances (In re Fingerprinting of M. B., 125 N.J.Super. 115, 309 A.2d 3 (App.Div.1973)) would become unavailable and there might even be some reason to doubt the constitutionality of the delegation of authority in the New Jersey Wiretapping and Electronic Surveillance Control Act, N.J.S.A. 2A:156A-1 et seq. Were Schweitzer sound, postconviction relief application would have to be denied for want of jurisdiction if sentence had been imposed and affirmed or the time for appeal had run. In this latter respect compare State v. Robinson, 148 N.J.Super. 278, 372 A.2d 634 (App.Div.1977). Indeed, even arrest warrants could not issue.

Schweitzer relies solely on State v. Ashby, 43 N.J. 273, 204 A.2d 1 (1964), for authority for the proposition that subject matter jurisdiction does not obtain until "once the grand jury has indicted a defendant." Id. at 276, 204 A.2d 1. We do not understand Ashby-an odd case in any event-to mean that. Rather Ashby stands for the proposition, as we read it, that without regard to the jurisdiction vel non of the court prior to indictment, once there is an indictment, the prosecutor loses any "discretion in the handling of criminal complaints." Ibid. Only two cases are cited in the Schweitzer opinion in connection with the obtaining of jurisdiction over the person: Gondas v. Gondas, 99 N.J.Eq. 473, 134 A. 615 (Ch.1926), and Stevens v. Associated Mtg. Co., 107 N.J.Eq. 297, 152 A. 461 (Ch.1930), aff'd o.b. 110 N.J.Eq. 70, 158 A. 343 (E. & A.1931). Notably, these are both civil cases. It is interesting that in Stevens Chancellor Walker observes that process "need not necessarily be a subpoena or other writ, it may be an order or notice. Every state has the power to prescribe a reasonable notice which shall be given in order to subject a defendant to the jurisdiction of its courts. (Citation omitted.)" 107 N.J.Eq. at 299, 152 A. 461.

We are satisfied that the judicial branch has jurisdiction in criminal matters extending beyond the limits imposed by Schweitzer. N.J.Const. (1947), Art. VI, § III, pars. 2 and 3; State v. Robinson, supra. We expressly overrule that case. Here we need not and we think the courts should not construct perimeters of the judicial jurisdiction. When questions arise it will be sufficient to decide them on a case-by-case basis. The lack of instructive precedent demonstrates the rarity of the problem.

In this respect it is pointed out in the opinion in Schweitzer, which acknowledges the "facial similarities" between that case and In re Fingerprinting of M. B., supra, that "the basic power of the trial court to issue the order in question was never raised" in M.B. (171 N.J.Super. at 88, 407 A.2d 1276.) The same may be said of the search warrant cases, the post-conviction relief cases and the wiretap cases. Such a universal restraint suggests to us the lack of a serious issue in this regard.

Our conclusion that in the circumstances of this case the trial court had subject matter jurisdiction and obtained jurisdiction over the person of defendant makes it unnecessary to consider the effect of defendant's voluntary appearance through counsel at the hearing on the prosecutor's application for a line-up order upon any suggestion of a lack of jurisdiction over the person. Cf. State v. Bierilo, 38 N.J.Super. 581, 120 A.2d 125 (App.Div.1956).

Obviously Fourth Amendment (to the U.S. Const.) considerations do come into play in a situation involving a compelled pre-indictment line-up appearance. But in our judgment the compelled exhibition of the physical characteristics of one's body presents no greater Fourth or, for that matter, Fifth Amendment problem than does the extraction of blood (Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966)) or the compelling of voice exemplars before a grand jury (U. S. v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973)). ¹ As is pointed out in Katz v. U. S., 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576 (1967), in a different context, "What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection." Against the argument that detention for line-up purposes is, in itself, a Fourth Amendment intrusion, we rely on the wisdom of Davis v. Mississippi, 394 U.S. 721, 727, 89 S.Ct. 1394, 1397, 22 L.Ed.2d 676 (1969), teaching that such a detention, like that for fingerprinting "may constitute a much less serious intrusion upon personal security than other types of police searches and detentions." As is the case with fingerprinting, a compelled line-up "involves none of the probing into an individual's private life and thoughts that marks an interrogation or search." These and other considerations produced the holding in the First Circuit of the United States Court of Appeals which sanctioned as proper, i.e., not unconstitutional, a compelled line-up appearance in response to a grand jury subpoena. In re Melvin, 550 F.2d 674 (1 Cir. 1977).

Dionisio, supra, suggests that where there is no infringement upon any interest protected by the Fourth Amendment, there may not even be a minimal requirement of "reasonableness" with respect to the basis for the action taken. 410 U.S. at 15, 93 S.Ct. at 772. Davis, supra, appears to be to the contrary in its requirement that, with respect to fingerprinting at least, the prior authorization of a judicial officer be obtained. 394 U.S. at 728, 89 S.Ct. at 1398. We are satisfied that the better rule is that enunciated by Judge Conford in In re Fingerprinting of M. B., which requires judicial authorization on notice and a hearing sufficient to produce a reasonable suspicion, akin to probable cause, of defendant's probable implication in the crime being investigated. But we need not here set standards beyond saying that the procedure being reviewed passes muster. There was notice to defendant who appeared by counsel. There was evidence from which the judge might and did conclude, on express findings which might reasonably have been reached from the whole record (State v. Johnson, 42 N.J. 146, 199 A.2d 809 (1964)), that "the State has established a well-founded suspicion of sufficient weight to justify compelling Hall to submit to an in-person line-up." For the foregoing reasons we reject defendant's contention that...