State v. Mathis

• Decision Date: 03 July 1968
• Docket Number: No. A--100,A--100
• Citation: 52 N.J. 238,245 A.2d 20
• Parties: The STATE of New Jersey, Plaintiff-Respondent, v. Marvin Reginald MATHIS, Defendant-Appellant.
• Court: New Jersey Supreme Court

Page 238

52 N.J. 238

245 A.2d 20

The STATE of New Jersey, Plaintiff-Respondent, v. Marvin Reginald MATHIS, Defendant-Appellant.

No. A--100.

Supreme Court of New Jersey.

Argued Feb. 20, 1968.

Decided July 3, 1968.

Victor R. King, Plainfield, for appellant.

Arthur J. Timins, Asst. Pros., for respondent (Leo Kaplowitz, Union County Pros., attorney).

The opinion of the Court was delivered by

WEINTRAUB, C.J.

We heretofore reversed a judgment imposing a death sentence upon defendant and ordered a new trial. State v. Mathis, 47 N.J. 455, 221 A.2d 529 (1966). Upon the retrial, defendant was again convicted of murder in the first degree and the jury not having recommended life imprisonment, he was again sentenced to die. His appeal comes directly to us. R.R. 1:2--1(c).

The facts are fully set forth in our opinion on the first appeal. There was no significant departure therefrom on the retrial, except that defendant did not testify and submitted a request to charge with respect to his silence which the trial court delivered to the jury.

A number of issues are projected in the brief filed by assigned counsel and in a further memorandum filed by defendant himself. We see no issue warranting discussion other than a point tendered at argument which we accepted and as to which a further brief was filed. That issue, suggested by cases then before the United States Supreme Court and since decided, Witherspoon v. State of Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (June 3, 1968), and Bumper v. State of North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (June 3, 1968), is whether the right to a fair jury was violated because veniremen were excused for cause on the basis of their position with respect to capital punishment.

I.

In Witherspoon the State statute, Ill.Rev.Stat.1959, c. 38, § 743, provided that cause for challenge existed in a murder case if a juror shall 'state that he has conscientious scruples against capital punishment, or that he is opposed to the same.' As construed, the statute authorized exclusion of a juror who 'might hesitate to return a verdict inflicting (death)' and in fact at the trial there involved 'the prosecution eliminated nearly half the venire of prospective jurors by challenging, under the authority of this statute, any venireman who expressed qualms about capital punishment.' Of the 47 veniremen excused on that account, only 5 'explicitly stated that under no circumstances would they vote to impose capital punishment.' 391 U.S. at p. 514, 88 S.Ct. at p. 1773, 20 L.Ed.2d at p. 780. Although the Court held that on the basis of what was before it or could be judicially noticed, a jury thus selected could not be said to be 'an unrepresentative jury on the issue of guilt' (88 S.Ct. at p. 1775), such a jury nonetheless 'fell woefully short of that impartiality' to which a defendant is constitutionally entitled on the question whether the punishment should be death or life imprisonment (88 S.Ct. at p. 1775).

As we understand Witherspoon, it holds that, at least for the time being, ¹ the State is entitled to a jury which is 'neutral' on the subject of penalty, and to that end may challenge for cause a juror who 'would not even consider returning a verdict of death' (88 S.Ct. at p. 1776), but that a jury is not representative of the community and hence is not impartial if 'it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction' (88 S.Ct. 1777). In other words, we read Witherspoon to recognize that the State is entitled to jurors who are impartial as to punishment, but it holds that a juror is impartial even though he has a bias against the State upon that topic, provided his bias is not so strong as to preclude him from considering the issue of punishment. Although a lesser bias might constitute 'cause' if it ran against a defendant (i.e., racial, religious, or ethnic prejudice), the bias here involved is deemed to be logically relevant to the question whether the death penalty should be imposed in a given case and hence a jury would be unrepresentative of the community conscience if there were excluded all who would have a distaste for capital punishment. But the State is entitled to 'a jury Capable of imposing the death penalty' (88 S.Ct. at p. 1776; emphasis added).

II.

Our cases define cause in terms agreeable to Witherspoon. Mere opposition to the death penalty, whether it arises from a religious or conscientious scruple or any other source, does not constitute cause for challenge. Rather it must appear that the prospective juror is Unable to return a death sentence no matter what may be the facts of the case. Thus in State v. Juliano, 103 N.J.L. 663, 138 A. 575 (E. & A. 1927), the court said (pp. 670--671, p. 579 of 138 A.):

'The next point raised in sequence is that the court erroneously sustained the challenge made by the state to jurors whose scruples against capital punishment Precluded their finding a verdict without recommendation for life imprisonment. * * * It was the right of the state to have jurors who would receive this contention With open mind, and when the jurors, upon their examination, disclosed that this phase of the case Could not be so submitted to them, they were obviously disqualified to pass upon one of the phases of the evidence as to which they might or might not exercise the clemency contemplated by the statute. If sworn as jurors their scruples would shut out this proof and be in defiance of the law which submitted to them the proper punishment to impose on the defendants based upon the evidence solely.' (Emphasis added.)

The same test applies if the bias is in favor of the death penalty and against life imprisonment. In State v. Jefferson, 131 N.J.L. 70, 34 A.2d 881 (E. & A. 1943), a challenge for cause was rejected, because although the juror believed everyone convicted of murder in the first degree should die, he nonetheless could recommend life imprisonment if there were mitigating circumstances. The court concluded 'There is nothing to show that the juror challenged did not stand indifferent between the state and the accused' (p. 72, p. 882 of 34 A.2d). Thus, whether the bent of a juror is against or for capital punishment, he is not disqualified if he remains able to entertain the issue of penalty.

The practice in our State has been to probe under oath, N.J.S. 2A:78--4, N.J.S.A., a juror's claim of scruples to ascertain whether it thus disables him from discharging the statutory duty to decide what the punishment should be. Indeed, the efforts of the trial courts to test whether the juror's stand is truly disabling has led to the claims that defendants were hurt in the process. So in State v. Rios, 17 N.J. 572, 112 A.2d 247 (1955), it was charged that the trial court thereby suggested it wanted a death verdict. We found the charge to be unwarranted in fact, and in so doing we reiterated the definition of 'cause' in terms which comport with Witherspoon, saying (17 N.J. at p. 590, 112 A.2d at p. 256):

'The questions objected to were obviously posed in an effort to elicit necessary information to enable the court to rule properly upon challenges made or contemplated. Nowhere can it be said that the court gave the impression that the jurors were under a moral obligation not to return a recommendation which would have meant the elimination of the extreme penalty. The questioning, rather, was directed to whether religious or moral scruples would Prevent the individual jurors, Under any circumstances, from deciding upon a verdict with the death penalty if the evidence so required.

'* * * Since the crime of which the defendants were accused carried the death penalty, the trial court could properly ascertain whether prospective jurors were Unable, because of their scruples, to render a verdict requiring capital punishment.' (Emphasis added.)

So, speaking of a complaint concerning the prosecutor's examination of the veniremen, we concluded (17 N.J. at p. 592, 112 A.2d at p. 257):

'* * * It was merely a proper probing within judicial limits to ascertain if their beliefs and convictions would Permit the return of a verdict in accord with the present law of our State.' (Emphasis added.)

The defendant in State v. Mount, 30 N.J. 195, 152 A.2d 343 (1959), similarly claimed, and prevailed upon the claim, that error occurred during the probing of the depth and dimensions of asserted scruples against capital punishment. A juror's claim was sought to be tested by inquiring whether he would feel the same way if the victim were a member of his family. When another juror asserted her opposition arose from the command of the Catholic faith, the trial court informed her the Catholic Church was not opposed to the death penalty. When the prosecutor asked a venireman: 'in a proper case where the facts warrant and under the charge of the law by the court would you vote for a verdict of murder in the first degree, knowing that as a result of that verdict The defendant would be put to death,' the trial court suggested the words we have italicized overstated the consequences since other events might intervene, such as a successful appeal, and that therefore the italicized words should be replaced by the proposition that 'the defendant would receive the death sentence.' This, defendant contended, diluted the jury's sense of full responsibility with respect to punishment. We held that although 'the trial court's remarks during the Voir dire were undoubtedly intended to test the strength of the juror's scruples against capital punishment and were not intended to influence them against the defendant' (30 N.J. at p. 212, 152 A.2d at p. 351), nonetheless the incidents just recounted added up to prejudicial error.

Thus Rios and Mount reveal plainly that a juror may not be excused for cause merely because of a qualm or a doubt or...