State v. Long

• Citation: 348 A.2d 202,137 N.J.Super. 124
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Walter LONG, Jr., Defendant-Appellant.
• Decision Date: 13 November 1975
• Court: New Jersey Superior Court – Appellate Division

Page 124

137 N.J.Super. 124

348 A.2d 202

STATE of New Jersey, Plaintiff-Respondent, v. Walter LONG, Jr., Defendant-Appellant.

Superior Court of New Jersey,

Appellate Division.

Argued Oct. 21. 1975.

Decided Nov. 13, 1975.

Susan Slovak, Asst. Deputy Public Defender, East Orange, for defendant-appellant (Stanley C. Van Ness, Public Defender, attorney, James K. Smith, Jr., Asst. Deputy Public Defender, of counsel).

Jane E. Deaterly, Deputy Atty. Gen., for plaintiff-respondent (William F. Hyland, Atty. Gen., attorney).

Before Judges LYNCH, ACKERMAN and LARNER.

The opinion of the court was delivered by

LARNER, J.A.D.

Defendant was convicted on both counts of an indictment charging him with possession of a controlled dangerous substance (N.J.S.A. 24:21--20(a)(1)) and distribution of same (N.J.S.A. 24:21--19(a)(1)). The trial judge imposed an 18-month sentence to the Mercer County Correction Center on each count, suspended execution of the same, and imposed a probation term and a fine of $500.

The major issue on this appeal is whether the trial judge committed reversible error in his refusal to pose certain questions to prospective jurors on the Voir dire. The asserted purpose of the supplemental questions framed by defendant's counsel was to elicit possible racial prejudice because defendant was black and the State's major witness, an undercover agent, was white.

The trial judge examined the jurors on Voir dire in accordance with R. 1:8--3 and State v. Manley, 54 N.J. 259, 255 A.2d 193 (1969). During this process he stressed to the panel that the purpose of the Voir dire was to 'get a jury that has no predispositions, have no prejudices, either against the person of the defendant himself whom you see in this courtroom or because of the nature of the charge,' in order to achieve a verdict based upon the evidence and 'not because of any passion, prejudice, or sympathy.'

Counsel for defendant requested the judge to supplement his inquiry by asking the jurors the following questions:

Would any among you give more credence to testimony of a white person that you would the testimony of a black person?

Would you give the testimony of a police officer more credence, more reliability than you would that of a black person?

The judge denied the request, stating that he had substantially covered the principles involved in the case and was not called upon to adopt the form of the questions submitted by counsel.

I

The thrust of the appellate argument is that the judge's failure to pose the questions as framed or in another form specifically attuned to ferret out possible racial prejudice was a violation of defendant's right to due process under the Fourteenth Amendment in view of the United States Supreme Court's opinion in Ham v. South Carolina, 409 U.S. 524, 93 S.Ct. 848, 35 L.Ed.2d 46 (1973). Alternatively, he argues that the judge's refusal to question the jurors as requested was an abuse of discretion constituting reversible error. These contentions bring into focus the scope and application of the Supreme Court's opinion in Ham v. South Carolina.

Preliminarily, we observe that in the absence of a request a judge is not required on his own motion to pose questions on a Voir dire relating to any specific type of prejudice, racial or otherwise, merely because a party may be black, white, yellow or red, or because he may possess any physical idiosyncrasy. The mere fact that the problem is highlighted by a judge's question may be counter-productive and inject rather than remove racial prejudice in a case where a defendant is other than white or may have physical characteristics which are different or unusual.

In Ham, supra, the Supreme Court was faced with the refusal of a state trial judge to interrogate jurors specifically as to their potential prejudice against blacks. Justice Rehnquist, writing for a unanimous court on this issue, overturned a conviction on the basis that the refusal of the trial judge to undertake a Voir dire inquiry as to possible racial prejudice constituted, under the facts in that case, a violation of the constitutional guarantee of due process contained in the Fourteenth Amendment.

Defendant herein takes the position that Ham mandates a reversal on constitutional grounds merely because of the fact that he is black. In support of this position he cites United States v. Robinson, 485 F.2d 1157 (3 Cir. 1973); United States v. Booker, 480 F.2d 1310 (7 Cir. 1973); Cochran v. State, 505 S.W.2d 520 (Ark.Sup.Ct.1974); McNichols v. State, 279 So.2d 377 (Fla.D.Ct.App.1973); Reid v. State, 129 Ga.App. 657, 200 S.E.2d 454 (App.Ct.1973); People v. Williams, 41 A.D.2d 611, 340 N.Y.S.2d 504 (App.Div.1973); People v. Wray, 49 Mich.App. 344, 212 N.W.2d 78 (App.Ct.1973).

The jurisdictions represented by the foregoing cases have indulged in a broad interpretation of Ham as setting down a constitutional imperative that a court must make specific inquiry as to racial prejudice when requested, in every routine black defendant case regardless of the absence of special racial overtones.

To the contrary, Massachusetts and the Ninth Circuit Court of Appeals have limited the mandatory effect of Ham to a case where facts exist which demonstrate racial overtones or potential prejudice. United States v. Walker, 491 F.2d 236 (9 Cir.), Cert. den. Sub nom. Walker v. United States, 416 U.S. 990, 94 S.Ct. 2399, 40 L.Ed.2d 768 (1974); Commonwealth v. Pinckney, Mass., 309 N.E.2d 495 (Sup.Jud.Ct.1974); Commonwealth v. Ryles, Mass., 296 N.E.2d 816 (Sup.Jud.Ct.1973), Cert. den. Sub nom. Ryles v. Massachusetts, 414 U.S. 980, 94 S.Ct. 301, 38 L.Ed.2d 224 (1973); Commonwealth v. Bumpus, Mass., 309 N.E.2d 491 (Sup.Jud.Ct.1974); Commonwealth v. Ross, Mass., 296 N.E.2d 810 (Sup.Jud.Ct.1973), Cert. den. Sub nom. Ross v. Massachusetts, 414 U.S. 1080, 94 S.Ct. 599, 38 L.Ed.2d 486 (1973). ¹

The impact of Ham on New Jersey practice has not been considered in any reported opinion to date.

A perusal of Justice Rehnquist's opinion in Ham leads us to conclude that it was intended to be limited as imperative constitutional doctrine to cases involving special circumstances pointing to the presence of racial overtones or prejudices. The opinion points up that defendant was a young negro who was 'well known locally for his work in such civil rights activities as the Southern Christian Leadership Conference and the Bi-Racial Committee of the City of Florence * * * His basic defense at the trial was that law enforcement officers were 'out to get him' because of his civil rights activities, and that he had been framed on the drug charge.' Ham v. South Carolina, supra, 409 U.S. at 525, 93 S.Ct. at 849, 35 L.Ed.2d at 49.

In our opinion, the Ham case does not have the broad impact urged by defendant. The fact that a defendant is black does not in itself demand that a judge must accede to a request to submit specific questions on racial prejudice to prospective jurors. As a corollary, the failure to make such inquiry in the normal case, absent other factors, does not constitute a violation of due process so as to mandate a reversal because of such failure.

We now turn to the alternative argument that the failure to question the jurors constituted an abuse of discretion. Where a defendant does request a Voir dire inquiry as to potential prejudice because of color or other physical characteristics, it is better practice for a judge to accede to the request and pose simple and direct questions pointed to the specific element of prejudice involved. However, a judge's refusal to interrogate jurors on a particular form of prejudice does not necessarily constitute an abuse of discretion reaching the level of reversible error. State v. Kelly, 118 N.J.Super. 38, 285 A.2d 571 (App.Div.), certif. den. 60 N.J. 350, 289 A.2d 795 (1972). It depends on the factual underpinning of the case itself, the characteristics of the principals involved in the crime, and a realistic assessment of the prejudice potential which may be introduced thereby. See Aldridge v. United States, 283 U.S. 308, 51 S.Ct. 470, 75 L.Ed. 1054 (1931); United States v. Robinson, 466 F.2d 780, 782 (7 Cir. 1972) (federal court practice).

The questions requested by defendant herein could have been rejected purely because of their inappropriate content. They did not zero in on the intended purpose of eliciting racial prejudice. It would be futile to ask a juror whether he would give more credence to testimony of a white person than a black person when he has not seen the witness or heard his testimony. A response would be meaningless unless the question included the additional caveat, 'solely because he was black.' The other question referable to the comparison of the testimony of a police officer and that of a black person is equally deficient.

Even if we attribute some substantive suggestion contained in these questions which would invite the judge to formulate his own questions on the subject of racial prejudice, nevertheless his failure to pose them cannot lead to a reversal of the conviction.

Defendant was charged with making a sale of a controlled dangerous substance to a police officer who was acting as an undercover agent. Defendant was black and the police officer was white. Otherwise, there were no racial overtones in the background of defendant, the nature of the crime, the milieu of the community, or in any pretrial publicity which would warrant the judge or the parties to anticipate realistically any possible racial prejudice on the part of prospective jurors.

Under such circumstances the decision of a judge whether to question jurors on possible racial prejudice after a proper request is made rests...