State v. Kociolek

• Decision Date: 11 February 1957
• Docket Number: No. A--54,A--54
• Citation: 129 A.2d 417,23 N.J. 400
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. John Joseph KOCIOLEK, Defendant-Appellant.
• Court: New Jersey Supreme Court

Page 400

23 N.J. 400

129 A.2d 417

STATE of New Jersey, Plaintiff-Respondent, v. John Joseph KOCIOLEK, Defendant-Appellant.

No. A--54.

Supreme Court of New Jersey.

Argued Nov. 26, 1956.

Decided Feb. 11, 1957.

Isaac C. Ginsburg, Atlantic City, for appellant.

David R. Brone, First Asst. Pros., Atlantic City, for the State (Lewis P. Scott, County Pros., Atlantic City, on the brief).

The opinion of the court was delivered by

HEHER, J.

In the Atlantic County Court the defendant Kociolek was convicted by a jury of murder in the first degree without recommendation of life imprisonment, and accordingly was sentenced to death; and the judgment is here for review by direct appeal of right under Article VI, Section V, paragraph 1(c) of the 1947 Constitution.

A prior judgment imposing the death sentence on a conviction of first-degree murder was reversed, 20 N.J. 92, 118 A.2d 812 (1955), and the retrial resulted in the judgment presently before us.

I.

The overruling of the accused's challenge to the array, or to the panel from which the trial jury was drawn, is now assigned for error.

The basic ground of challenge is that the trial jury was not impanelled as directed in N.J.S. 2A:74--9, N.J.S.A., providing that in all cases where the person indicted for crime is entitled to 20 peremptory challenges and to have a 'list of the jury' delivered to him previous to his trial, the sheriff or other proper officer shall draw a list of 48 jurors 'or such larger number as is directed by special order of the court'; also, that 'Such drawing shall be from the general panel of jurors drawn and summoned to attend during the stated session at which such defendant is to be tried and shall be made from the box in the presence of the judge of the county court, or in the presence of the clerk of such court'; and 'If 48 jurors, or such larger number as may be specified by the special order aforementioned shall not have been so drawn and summoned, or if, for any reason, the number of jurors drawn and summoned shall be reduced below 48, or such larger number as aforesaid,' the sheriff or other officer is directed to 'add to the number so drawn and summoned as many more persons of the body of his county, qualified to serve as jurors, as shall make up the number of 48, or such larger number as aforesaid'; and, in its final clause, that 'Defendant or his counsel may, at any time, in open court, except where the indictment is for treason or murder, waive the drawing or service, or both, of the list of jurors, and consent to be tried by a jury drawn in the ordinary way from the general panel.'

And reliance is also placed on R.R. 3:7--2, providing that any person indicted for treason, murder or kidnapping 'shall have a list of the jury delivered to him at least 3 days before the trial,' and the prosecutor or the defendant or his attorney 'may challenge the array on the ground that the jurors were not selected, drawn or summoned according to law, * * *.' It is there directed that a challenge to the array be in writing, which was so here, 'and decided before any individual juror is examined.'

The general panel of jurors for the 'Stated Session commencing' May 1, 1956 consisted of 390 persons. By order made February 20, 1956 the assignment judge directed that the 'Grand Jury List' comprise 125 persons, and the 'Petit Jury List' 400 persons, and that the county clerk or his deputy 'present in open court' on April 20 ensuing the 'Jury Lists for the Stated Session filed with him, pursuant to R.S. 2A:71--1 (N.J.S.A.), and at the same time and place, pursuant to R.S. 2A:71--2 (N.J.S.A.), the Jury Commissioners shall draw 35 Grand Jurors and four separate Petit Jury Panels: Two panels to consist of 75 Petit Jurors each to serve for the trial of criminal causes in the Superior Court and County Court at Mays Landing, and two panels to consist of 75 Petit jurors each to serve for the trial of civil causes in the Superior Court and County Court at Atlantic City, and the remainder of the general panel consisting of 100 Jurors shall constitute a reserve list of jurors from which each of the foregoing panels may be supplemented if necessary.'

This 'written directive,' the State maintains, 'is implicit in the meaning of R.R. 1:29--1, and in the proper construction to be given to N.J.S. 2A:74--8 (N.J.S.A.),' providing that 'The judges of the county court sitting for the trial of issues or causes in a county in which the general panel of petit jurors has been divided into separate panels may direct the drawing of juries from 1 or more of the separate panels,' and 'In the drawing of trial juries in such cases there shall be put into the box the names of the jurors constituting 1 of the separate penels designated by the trial judge'; and 'If because of challenges, the default of jurors or otherwise, a sufficient number of jurors cannot be had from the jurors composing any separate designated panel,' the court shall direct the sheriff 'to order the jurors composing another of the separate panels into which the general panel has been divided to attend the court,' and the names of the jurors composing such other separate panel 'shall be put into the box.'

And the State suggests that the assignment judge is authorized 'to set up separate panels' by the last sentence of N.J.S. 2A:71--2, N.J.S.A.: 'The persons whose names are announced shall constitute the panel of petit jurors for service in the county for the next ensuing stated session of the courts therein, Or for such part thereof as the assignment judge may direct.' The italics indicate the phrase deemed of determining significance in this regard.

The general panel was accordingly divided into four separate panels, each comprising 75 jurors, designated Criminal No. 1, Criminal No. 2, Civil No. 1 and Civil No. 2, and a fifth called the 'Reserve Panel,' consisting of 90 jurors.

The county judge orally directed the sheriff 'to cause' the 75 jurors composing Criminal No. 1 panel 'to be brought in' for the trial of the indictment returned against the defendant; and this was done. There was no written order to that end. It was stipulated on the hearing of the challenge that there 'was no redrawing out of all of the jurors returned for the May term of a panel of 48 jurors, or of any other number, to try this indictment.' The challenge to the array was interposed at the outset; and it was disallowed for want of a showing of 'prejudice,' since the accused 'in fact was given a larger list than 48,' and there was no merit in the point that recourse should have been had to the 'higher panel, including the civil,' inasmuch as the order of the assignment judge directed the selection of 'two panels of 75 petit jurors each, to serve for the trial of criminal cases in the County Court at Mays Landing,' and two panels of 75 jurors each to serve in the trial of 'civil cases in the Superior Court.'

But the course thus taken was in utter disregard of the requirement of N.J.S. 2A:74--9, N.J.S.A. that 'in all cases where' the indicted defendant 'is entitled to 20 peremptory challenges and to have a list of the jury delivered to him previous to his trial,' the sheriff shall draw a special panel of 48 jurors, or such larger number as may be directed by special order of the court, from the 'general panel of jurors drawn and summoned to attend during the stated session at which such defendant is to be tried,' the drawing to be made from the box in the presence of the judge of the County Court or the clerk of the court, a course of procedure so imperative in expression as to bar waiver by the defendant or his counsel where the indictment is for treason or murder, although in all other cases there may be a waiver, 'in open court,' by the defendant or his counsel, of 'the drawing or service, or both, of the list of jurors, and consent to be tried by a jury drawn in the ordinary way from the general panel.'

The statute in peremptory terms directs the drawing of a special panel from the general panel for the particular case; and the basic policy concept would seem to be the timely selection of the special panel to afford the accused, and the State as well, an opportunity for inquiry and due consideration of the qualifications of the jurors, an informed exercise of the essential right of challenge and thus to insure a fair and impartial trial, all this not alone as a concession to the accused's personal interest in a just trial, but also in fulfillment of society's concern in a rational course of justice precluding arbitrary action and deprivation of life or liberty save by due process of law, a responsibility of deeper gravity in capital cases, indeed a duty embedded in the natural law. The natural life, says Blackstone, 'cannot legally be disposed of or destroyed by any individual, neither by the person himself, nor by any other of his fellow creatures, merely upon their own authority.' 1 Blk.Com. 133. See Hopt v. People of Utah, 110 U.S. 574, 4 S.Ct. 202, 28 L.Ed. 262 (1884), Harlan, J.; State v. O'Leary, 110 N.J.L. 36, 163 A. 904 (E. & A.1933).

The State insists that N.J.S. 2A:74--8, 2A:71--8 and 2A:74--9, N.J.S.A. are In pari materia and 'should be so read,' citing R.S. 1:1--1, N.J.S.A., and the 'mandatory presumption to be given to the word 'shall' as employed in 2A:71--9 is overcome by the character of the whole legislation--2A:74--8, 2A:71--8 and 2A:74--9;' the 'context of these statutes,' it is said, 'justifies the conclusion that the word 'shall' as appears in 2A:74--9 was intended to be considered directory and not mandatory.' N.J.S. 2A:71--8, N.J.S.A. provides for the division of the general panel of petit jurors summoned for the 'trial of causes' into two or more separate panels, in the discretion of the assignment judge, in a county in which there are two or more courts sitting simultaneously or where cases are tried in different parts of the county, for service in a court or place and for a period designated...