State v. Levitt

• Decision Date: 18 December 1961
• Docket Number: No. A--22,A--22
• Citation: 91 A.L.R.2d 1112,36 N.J. 266,176 A.2d 465
• Parties: , 91 A.L.R.2d 1112 STATE of New Jersey, Plaintiff-Appellant, v. Donald G. LEVITT, Defendant-Respondent.
• Court: New Jersey Supreme Court

Page 266

36 N.J. 266

176 A.2d 465, 91 A.L.R.2d 1112

STATE of New Jersey, Plaintiff-Appellant, v. Donald G. LEVITT, Defendant-Respondent.

No. A--22.

Supreme Court of New Jersey.

Argued Nov. 6 and 8, 1961.

Decided Dec. 18, 1961.

Martin J. Queenan, Burlington County Prosecutor, Burlington, for plaintiff-appellant.

James M. Davis, Jr., Mt. Holly, for defendant-respondent (Powell & Davis, Mt. Holly, attorneys; Samuel P. Orlando, Camden, of counsel.

The opinion of the court was delivered by

PROCTOR, J.

After the defendant was convicted in the Burlington County Court of committing a private act of lewdness in violation of N.J.S. 2A:115--1, N.J.S.A., the trial judge granted the defendant's motion to set aside the verdict and for a new trial. The order stated it was the trial judge's opinion that 'misconduct occurred in the jury room of such a nature as to vitiate the verdict returned by the jury on the grounds of bias, passion, prejudice or mistake.' The Appellate Division granted the State leave to appeal and while the appeal was pending we certified the matter on our own motion. R.R. 1:10--1(a).

There is no need for us to narrate in detail the evidence presented at the trial. For our purposes it is enough to say that the State's sole witness was a patient of the defendant who is a physician. She testified that he committed an indecent act upon her while she was in an hypnotic state and during the course of being treated by him. The defendant denied the alleged offense. The turning point of the case was the extent of the credibility accorded the testimony of the complaining witness as against that of the defendant and his witnesses, including twenty-five who attested to his reputation.

The day after the jury returned its verdict of guilty, one of the jurors telephoned the trial judge and requested an appointment. At their meeting in his chambers, she informed him of certain allegedly prejudicial statements made by other jurors during the jury's deliberations. Thereupon he relayed this information to the Prosecutor and counsel for the defendant. Seasonably the defendant moved for a new trial on several grounds including:

'3. The verdict of the jury was the result of misconduct on the part of the jury.

4. The verdict of the jury was the result of passion, prejudice, bias and mistake.

5. The verdict of the jury resulted from the making of inflammatory statements by the County Prosecutor.

6. The verdict of the jury was the result of harmful and prejudicial error committed by the trial judge.'

In support of the motion, defendant submitted an affidavit of the informing juror which in pertinent part reads:

'The jury took three ballots before reaching its determination. The first vote was taken approximately one-half hour after the jury had retired to the jury room. Between the taking of the first ballot and the second, there was considerable conversation and discussion in the jury room among all of the jurors. During such conversation and before taking the second ballot, one of the members of the jury who took a leading roll in the discussions commented upon Dr. Levitt's appearance and said, 'How could anyone go to him because just a look at him leads to the conclusion that he is a person capable of doing the things that he is charged with,' whereupon another woman member of the jury agreed with her. Shortly thereafter the question came up regarding what effect should be given to the character witnesses. Again the woman member of the jury who was taking a leading role stated, 'Did you notice the character witnesses * * *,' and a male member of the jury stated, 'Yes, 'characters'!' Then the same woman said, Did you notice most of them were Jews and even one of them was from the Synagogue."

The hearing on the motion was adjourned to permit the Prosecutor to investigate the allegations in the affidavit. Thereafter, county detectives obtained statements from the remaining jurors. Some of these were sworn to, others were not; some supported the charges, others contradicted them.

At the subsequent hearing, the trial judge, after finding that defendant's other grounds 'standing alone' were insufficient to warrant the granting of a new trial, considered the affidavit of the juror who first brought the matter to his attention and the affidavits and statements of the eleven other jurors. He said:

'However, now we have one more facet added to the whole complexity of this situation; namely that somebody for some reason injected the question of this man's religion, and apparently the religion of many of his character witnesses, into the deliberations of the jury.

The trial judge was concerned with 'whether or not there was any passion, prejudice or mistake in that jury room.' He ordered a new trial after concluding:

'There seems to be little doubt in this case this man's religion (defendant is Jewish) was injected into the deliberations of this jury; that is corroborated. There seems to be little doubt that at least one person on that jury was affected, and it seems prejudically so and it makes little difference that the infection was only slight so long as it is present.

(T)he deliberations * * * should be free of taint of passion, prejudice or mistake.'

While on this appeal the State does not challenge the use of the informing juror's affidavit, it contends the comments of the jurors 'consisted of observations and legitimate deductions made during the trial of the case.' It argues that jury comments based upon matter which is before them cannot be grounds for granting a new trial and to conclude otherwise would result in 'a substantial impairment of the jury system.'

Courts continually strive to protect the basic right to an impartial jury thereby sustaining the jury system, the very foundation of criminal justice. The law is 'always zealous to protect every accused from a (jury) verdict prejudiced by the taint of extraneous influence.' State v. Kociolek, 20 N.J. 92, at p. 96, 118 A.2d 812, at p. 814, 58 A.L.R.2d 545 (1955). As we said in Wright v. Bernstein, 23 N.J. 284, at pp. 294--295, 129 A.2d 19, at p. 25 (1957).

'The jury is an integral part of the court for the administration of justice and on elementary principles its verdict must be obedient to the court's charge based solely on legal evidence produced before it and entirely free from the taint of extraneous considerations and influences. The parties to the action are entitled to have each of the jurors who hears the case impartial, unprejudiced and free from improper influences.'

See Panko v. Flintkote Co., 7 N.J. 55, at p. 62, 80 A.2d 302, at p. 306 (1951), where we said 'In order that there may be confidence in trial by jury it is necessary that parties are to feel sure that verdicts are based upon an honest consideration of the evidence and not upon prejudice or sympathy.' Though Wright and Panko involved civil trials, the standards for the jury in a criminal trial cannot be less demanding. See State v. Rios, 17 N.J. 572, 590, 112 A.2d 247 (1955).

Where there are sufficient allegations that the jury's verdict was discolored by improper influences, the trial judge should investigate the truth of the charges so that he may determine whether a new trial is warranted. And it makes no difference whether the improper influences occurred inside or outside the jury room. Wright v. Bernstein, supra; Panko v. Flintkote Co., supra; Palestroni v. Jacobs, 10 N.J.Super. 266, 77 A.2d 183 (App.Div.1950); Capozzi v. Butterwei, 2 N.J.Super. 593, 65 A.2d 144 (Law Div. 1949). Though the trial judge cannot examine the thought processes of jurors in reaching their verdict, he can receive jurors' evidence as to the existence of conditions or the occurrence of events to determine whether they showed an adverse prejudice bearing on the verdict. State v. Kociolek, supra, 20 N.J. at p. 100, 118 A.2d 812; see Note, 56 Colum.L.Rev. 952 (1956).

In the present case the trial judge decided to set aside the jury's verdict and order a new trial after a hearing and full consideration of the affidavits and statements of the jurors. Because of the delicacy of the questioning of jurors, we think the proper practice would be for the trial judge to take the testimony of the jurors himself in the presence of counsel, rather than expose jurors to questioning by others. See Wright v. Bernstein, supra, 23 N.J. at p. 297, 129 A.2d 19; Palestroni v. Jacobs, supra, 10 N.J.Super. at p. 276, 77 A.2d 183. Moreover, he will be in a better position to pass upon the merits of the allegations. However, since the parties agreed to the procedure followed by the trial judge, and the State does not dispute the truth of the initial affidavit in the question involved in this appeal, we need not pursue the matter further.

In any cause pending before him the trial judge has broad power to see that justice is done. While according due respect to the findings of the jury, he should not hesitate to set aside their verdict and grant a new trial in any case where he believes the ends of justice so require. R.R. 3:7--11. And if he finds a verdict is tainted by prejudice, it makes no difference that evidence which was presented at the trial brought this prejudice to the surface.

Motions for a new trial 'are addressed to the sound discretion of the court; and the exercise of the discretion will not be interfered with on appeal unless a clear abuse of it is shown.' State v. Smith, 29 N.J. 561, 573, 150 A.2d 769, 775 (1959); State v. Bunk, 4 N.J. 482, 485, 73 A.2d 245 (1950).

The trial judge had before him proof that religion was introduced into the jury room. After considering the affidavits and statements he concluded that the remarks belittled the integrity of all adherents to the Jewish faith and exhibited an adverse prejudice in the jury's deliberations. Other jurisdictions have recognized that remarks of a juror evincing racial or religious bias are grounds for impeaching the jury's verdict. In ...