State v. Howard

Decision Date12 December 1983
Citation471 A.2d 796,192 N.J.Super. 571
PartiesSTATE of New Jersey, Plaintiff-Respondent, v. Maurice HOWARD, Defendant-Appellant. STATE of New Jersey, Plaintiff-Respondent, v. Lawrence WOODWARD, Defendant-Appellant. STATE of New Jersey, Plaintiff-Respondent, v. Kenneth THOMPSON, Defendant-Appellant.
CourtNew Jersey Superior Court — Appellate Division

Joseph H. Rodriguez, Public Defender, for defendant-appellant Maurice Howard (E. Carl Broege and Roger A. Solomon, Asst. Deputy Public Defenders, of counsel and on the brief).

George L. Schneider, Essex County Prosecutor, for plaintiff-respondent in Howard (Stephen F. Smith, Jr., Asst. Essex County Prosecutor, of counsel; Hilary L. Brunell, Asst. Prosecutor, on the brief).

Ronald G. Rubin, Audubon, for defendant-appellant Lawrence Woodward (Brian S. O'Malley, Woodbury, on the brief).

John B. Mariano, Camden County Prosecutor, for plaintiff-respondent in Woodward (Dennis G. Wixted, Asst. Prosecutor, of counsel and on the briefs).

Joseph H. Rodriguez, Public Defender for defendant-appellant Kenneth Thompson (Leonard S. Baker, Asst. Deputy Public Defender, of counsel).

John B. Mariano, Camden County Prosecutor, for plaintiff-respondent in Thompson (Arnold Golden, Asst. Prosecutor, of counsel and on the brief).

Before Judges MATTHEWS, COLEMAN and GAULKIN.

The opinion of the court was delivered by

MATTHEWS, P.J.A.D.

We have before us three motions for leave to appeal rulings of trial judges which, it is claimed in each case, restricted the rights of each of the defendants who is charged with capital murder from freely questioning potential jurors on voir dire. We grant leave to appeal, and having received the briefs and appendices from counsel, proceed to dispose of the issue before us. R. 2:11-2.

While each defendant first raises an issue with respect to sequestered 1 voir dire of prospective jurors, we see no issue to be resolved, since it is clear that sequestered voir dire will be permitted, as it should be in each case. The State also urges that voir dire in these cases be sequestered.

The question before us goes to the method to be employed by the trial judge in conducting the voir dire. Should it be conducted by the trial judge exclusively, using questions submitted to him by counsel, as was the ruling in each of the cases before us, should it be conducted by the judge and supplemented by counsel, or should it be conducted exclusively by counsel as is urged by defendant Howard?

R. 1:8-3 provides in pertinent part:

(a) Examination of Jurors. For the purpose of determining whether a challenge should be interposed, the court shall interrogate the prospective jurors in the box after the required number are drawn without placing them under oath. The parties or their attorneys may supplement the court's interrogation in its discretion. At trials of crimes punishable by death, the examination shall be made of each juror individually, as his name is drawn, and under oath.

This rule is substantially the same as that referred to in State v. Manley, 54 N.J. 259, 281, 255 A.2d 193 (1969). 2

Counsel for defendants argue that Manley was not a capital case and therefore cannot control the issues here, and that R. 1:8-3(a) must be read to require counsel's participation in juror voir dire as a matter of constitutional right.

In Manley, although the indictment was for murder, the State did not demand the death penalty. As the Court noted in its opinion "[y]et the interrogation of prospective jurors was excessively prolix and eight days passed before the jury box was filled." Id. at 263, 255 A.2d 193. Manley was convicted of second degree murder, and the Court in affirming the conviction took the opportunity to discuss the question of the voir dire examination of jurors:

The remedial movement is toward adoption of methods designed to restore the fundamental basis for preliminary questioning, i.e., an expedient selection of a fair and impartial jury, one that will decide the case fairly under the evidence presented and the instructions of the court. Obviously a most important method is to limit more stringently the conduct and scope of the voir dire. Essentially this means eliminating the efforts to indoctrinate, to persuade, to instruct by favorable explanation of legal principles that may or may not be involved, to lecture on the law and the facts and the relation of one to the other, the lecture ending in a question for form's sake. It means also a prohibition of the hypothetical question intended and so framed as to commit or to pledge jurors to a point of view or a result before they have heard any evidence, argument of counsel or instructions of the court.

....

The impression is inescapable that the aim of counsel is no longer exclusion of unfit or partial or biased jurors. It has become the selection of a jury as favorable to the party's point of view as indoctrination through the medium of questions on assumed facts and rules of law can accomplish.

In order to remedy the situation this Court has adopted Rule 1:8-3(a), effective September 8, 1969, applicable to both civil and criminal cases.

.... Administration of this rule will require trial judges to exercise greater control over the voir dire questioning than has been exercised in our State in modern times. The burden necessarily assumed by them will be compensated for in substantial measure by a shortening of the time for empaneling a jury [citation omitted] and by avoidance of the tedium associated with prolix and repetitious questioning, much of which intrudes into the aspect of the trial which should be dealt with by the judge alone at the proper point in the proceedings. From the public standpoint, preliminary questioning by the neutral judge is more likely to produce a truly impartial jury. In addition it will avoid the unreasonable expense of a protracted jury examination; it will serve the interest of the jurors by conserving their time and energy and by eliminating unwarranted intrusion into their personal affairs; it will tend to encourage citizens to serve as jurors; it will obviate the expense of wasted court time and serve the interest of other litigants in the availability of court facilities, as well as the interest of the judicial system in the effective and productive dispatch of its business....

In order to accomplish the purpose of Rule 1:8-3(a), the trial court in administering the discretionary portion thereof must exercise considerable restraint over supplementary questioning by counsel. The basic intent is to have the voir dire conducted exclusively by or through the trial judges to the extent reasonably possible. Examination by the court will be facilitated if questions on subjects the parties or counsel desire covered are submitted in advance of or at the opening of the trial. [citation omitted]. Of course supplementary questioning by counsel personally is not foreclosed entirely, but control over its scope and content is left to the experienced judgment and discretion of the trial judge to be exercised with the history and purpose of the rule in mind. In this connection also it may be noted that the rule calls for a much more guarded exercise of discretion than that previously announced in State v. Sullivan, 43 N.J. 209, 239-240 (1964). [54 N.J. 280-283, 255 A.2d 193]

We conclude that there is nothing in our statutory law, the rules of court, or cases decided since Manley which derogates the holding of that case. While it is true that Manley did not involve the death penalty, nevertheless there was a death penalty statute ( N.J.S.A. 2A:113-4) in effect at the time that it was decided, and we believe that the language of the opinion evinces consideration of that statute. Most convincing is Manley's implicit modification of the exercise of discretion which the Court had set in State v. Sullivan, 43 N.J. 209, 239-240, 203 A.2d 177 (1964). Although the death penalty was not imposed, Sullivan was a capital case.

Defendants argue that the right of counsel to conduct voir dire is of constitutional dimension, and even if not, the trends of expert opinion, legislation and judicial precedent require the conclusion that there should be no limitation imposed on attorney conducted voir dire examination in capital cases.

We have not been cited to a case which supports defendants' arguments as to the constitutional right to attorney conducted voir dire, nor have we been able to find one. The only significant mention of the problem is found in Turner v. Commonwealth, 221 Va. 513, 273 S.E.2d 36 (Sup.Ct.1980), cert. den. 451 U.S. 1011, 101 S.Ct. 2347, 68 L.Ed.2d 863 (1981). Turner was a capital case in which defendant was sentenced to death. The Virginia Supreme Court in response to arguments similar to those raised here, stated:

Turner suggests that, even if Code § 8.01-358 confers no unconditional right to counsel-conducted voir dire, the trial court abused its discretion in refusing to allow defense counsel to question prospective jurors directly and in not questioning each prospective juror out of the presence of other jurors. While the defendant has a constitutional right to a fair and impartial jury, he has no constitutional right to counsel-conducted voir dire. [citation omitted]. In the absence of a statute or court rule to the contrary, as long as the selection procedure results in a fair and impartial jury, the manner in which a jury is to be selected is properly within the trial court's sound discretion.

Since the decision in Turner, the Virginia Legislature amended Virginia Code § 8.01-356 to state that "[t]he court and counsel for either party shall examine under oath...."

With respect to the second part of this argument: that attorney conducted voir dire of individual jurors is the most effective method of jury selection, we find nothing in the record to justify this conclusion. Indeed, the language of Manley, including...

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4 cases
  • State v. Zola
    • United States
    • United States State Supreme Court (New Jersey)
    • October 7, 1988
    ......Manley, 54 N.J. 259, 255 A.2d 193 (1969), as well as Rule 1:8-3(a), which states that for the purpose of determining whether challenge should be interposed, "the court shall interrogate" the prospective jurors. See also State v. Howard, 192 N.J.Super. 571, 471 A.2d 796 (App.Div.1983) (attorney-conducted voir dire is not in itself part of the constitutional guarantee of fair trial). .         At the same time, we reiterated our concern "that in capital cases trial courts should be especially sensitive to permitting ......
  • State v. Biegenwald
    • United States
    • United States State Supreme Court (New Jersey)
    • March 5, 1987
    ...... We note also that the Appellate Division has expressly considered and rejected the contention that State v. Manley, supra, 54 N.J. 259, 255 A.2d 193, is inapplicable to capital cases. State v. Howard, 192 N.J.Super. 571, 471 A.2d 796 (1983). .         Our present Court rule is intended to see that voir dire is conducted to the extent reasonably possible by the court. The trial [524 A.2d 138] court is given discretion to permit counsel to supplement the court's interrogation of jurors ......
  • State v. Gilmore
    • United States
    • New Jersey Superior Court – Appellate Division
    • March 8, 1985
    ...... Judicial self-restraint constrains us to defer until another day a decision on such questions. . 3 Unlike many states, in New Jersey the jury voir dire questioning is conducted primarily by the trial judge. State v. Manley, 54 N.J. 259, 255 A.2d 193 (1969); State v. Howard, 192 N.J.Super. 571, 471 A.2d 796 (App.Div.1983); R. 1:8-3. . 4 The 1980 census reveals in the following counties the Black and Puerto Rican population respectively of persons who were 18 years of age ......
  • Young v. Latta
    • United States
    • United States State Supreme Court (New Jersey)
    • May 14, 1991
    ......       New Jersey's contribution statute, however, when compared to that suggested by the National Conference of Commissioners on Uniform State Laws (see Uniform Contribution Among Tortfeasors Act §§ 1-9, 12 U.L.A. 63 (1955)), provides little guidance on how courts should implement its ......

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