State v. Newsome

• Decision Date: 18 December 1980
• Citation: 177 N.J.Super. 221,426 A.2d 68
• Parties: , 7 Media L. Rep. 1308 STATE of New Jersey, Plaintiff-Respondent, v. Ricky NEWSOME, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 221

177 N.J.Super. 221

426 A.2d 68, 7 Media L. Rep. 1308

STATE of New Jersey, Plaintiff-Respondent, v. Ricky NEWSOME, Defendant-Appellant.

Superior Court of New Jersey, Appellate Division.

Submitted Nov. 18, 1980.

Decided Dec. 18, 1980.

Tort, Jacobs, Gross, Rosenberger & Todd, Atlantic City, for defendant-appellant (Alan M. Lands, Atlantic City, on brief).

John J. Degnan, Atty. Gen., for plaintiff-respondent (Thomas A. Penn, Deputy Atty. Gen., of counsel and on brief).

Before Judges MICHELS, ARD and FURMAN.

The opinion of the court was delivered by

ARD, J. A. D.

Tried to a jury, defendant was convicted of first degree murder while armed and assault with intent to kill. He was sentenced to the New Jersey State Prison for a term of life on the murder conviction and a consecutive term of seven to ten years for being armed. At the time of sentencing the trial judge merged the conviction for assault with intent to kill with the conviction for murder. This appeal followed.

Defendant urges as error the following:

POINT I As a result of the televising and broadcasting of the trial defendant was deprived of his Fourteenth and Fifth Amendment rights to due process and his Sixth Amendment right to a fair trial;

POINT II The Supreme Court Guidelines for Experimental TV Coverage fail to provide adequate methods for appellate review;

POINT III The seriousness of a homicide trial should have in and of itself precluded the use of television coverage on an experimental basis;

POINT IV The trial judge failed to comply with the guidelines for the experimental program of television coverage;

POINT V The admission into evidence of the hearsay statements by the victim identifying the defendant as the assailant prejudicially affected the substantial rights of the defendant and possess a clear capacity to bring about an unjust result.

The primary thrust of defendant's appeal in Points I through IV challenges the presence and use of radio and television in the courtroom during the trial. On May 1, 1979 the morning session of the second day of defendant's trial was the subject of coverage by one television camera and two still cameras. In addition, radio coverage was permitted.

This trial was the first in the State to be televised pursuant to a Supreme Court experimental program which relaxed 3 A(7) of the Code of Judicial Conduct prohibiting photographic and electronic media coverage of judicial proceedings. To put the matter in proper perspective, it is essential to understand that only the morning session of the second day of defendant's trial was covered by the aforementioned media. The coverage lasted two hours and consisted of the opening statements of counsel, a Wade hearing concerning the identification testimony of Leon Williams, the testimony of Frank Stites, an investigator who prepared the Williams' photo identification of defendant and the testimony of Phillip Mineer, who diagrammed and photographed the murder scene. The jury was present during the opening statements and the testimony of Stites and Mineer. The trial took four days. At no time were the jurors photographed or televised. Televised excerpts and commentary on the trial appeared on the 5:30, 6:00 and 11:00 p. m., Channel 6 News programs.

Defendant does not point to a specific incident as proof of prejudice. He argues that by allowing the media coverage there occurred a per se denial of his Fifth and Fourteenth Amendment rights to due process as well as his Sixth Amendment right to a fair trial. We disagree.

The rules governing the courts of this State were promulgated by the Supreme Court pursuant to the obligation imposed upon it by Art. VI, § II, par. 3 of the New Jersey Constitution of 1947. Consistent with the foregoing obligation, R. 1:14 was adopted incorporating codes of ethics governing the conduct of members of the bar and the judges of all courts of this State. It states:

The Disciplinary Rules of the Code of Professional Responsibility and the Code of Judicial Conduct of the American Bar Association, as amended and supplemented by the Supreme Court and included as an Appendix to Part I of these rules, shall govern the conduct of the members of the bar and the judges of all courts of this State.

Canon 3 of the Code of Judicial Conduct provides in pertinent part as follows:

The judicial duties of a judge take precedence over all his other activities. His judicial duties include all the duties of his office prescribed by law. In the performance of these duties, the following standards apply:

A. Adjudicative Responsibilities.

(7) A judge should prohibit broadcasting, televising, recording, or taking photographs in the courtroom and areas immediately adjacent thereto during sessions of court or recesses between sessions, except that a judge may authorize:

(a) the use of electronic or photographic means for the presentation of evidence, for the perpetuation of a record, or for other purposes of judicial administration.

Normally Canon 3 of the Code of Judicial Conduct, being part of our rules of general application governing the practice and procedure in the administration of our courts, would prohibit radio and television coverage of court proceedings. However, the Supreme Court's Committee on Relations with the Media made a study of audio-visual coverage of court proceedings. In the course of the committee's business a subcommittee was created to gather information with respect to electronic coverage of trials in several states. Among other things, this committee ascertained that the states of Colorado, Washington, Alabama and Florida have adopted rules which allow ongoing electronic media in-court coverage. In addition, the subcommittee recommended to the full committee that the Supreme Court authorize an experimental program of television, radio and still camera coverage of a criminal trial. The Committee on Relations with the Media unanimously recommended that the Supreme Court relax Canon 3 A(7) of the New Jersey Code of Judicial Conduct in order to authorize an experimental program of television, still camera and radio coverage of court proceedings in New Jersey. 101 N.J.L.J. 450 (May 4, 1978). Pursuant to this recommendation, the Supreme Court on March 15, 1979 entered the following order: ¹

It is ORDERED that the provisions of Canon 3 A(7) of the Code of Judicial Conduct as adopted by this Court pursuant to R. 1:14 are hereby relaxed for the trial period of an experimental program permitting coverage of court proceedings by the electronic media and print photography; and it is further

ORDERED that the attached guidelines are approved for application throughout the trial period; and it is further

ORDERED that the trial period shall commence, in such counties as shall be designated from time to time by the Court, effective May 1, 1979.

As indicated in the order, extensive guidelines were promulgated to prevent disruption of the courtroom. 103 N.J.L.J. 269 (March 29, 1979). Included in the guidelines was a provision that the trial period should run for one year or until at least six trial court cases have been covered. Subsequently the Supreme Court extended the program to July 1, 1981. 106 N.J.L.J. 407 (November 13, 1980).

The guidelines are quite comprehensive. They limit the equipment and personnel allowed in the courtroom; set criteria for the light, sound and location of the equipment and personnel; prohibit movement of equipment during the proceedings; guarantee the confidentiality of the attorney-client privilege, and among other general protections require a mandatory pretrial conference to review the guidelines and insure courtroom decorum.

We have canvassed the entire record and are satisfied the trial judge scrupulously adhered to the mandates set forth in the guidelines. Defendant's allegation that the trial judge failed to comply with these guidelines does not find support in the record before us. The argument that the record fails to disclose whether or not the assignment judge actually positioned the cameras but rather approved the positioning as ordered by the trial judge is specious. The record clearly indicates the assignment judge checked the courtroom and the position of the cameras and indicated his approval. This type of supervision is more than sufficient.

Lastly, with respect to the media coverage, we deal with defendant's allegations of the denial of his constitutional rights, namely, his assertion that he was denied due process and a fair trial. In support of this argument, defendant appears to rely solely on Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965). Such reliance is misplaced. In Estes as well as Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966), the United States Supreme Court dealt with a totality of circumstances surrounding the media coverage so gross as to warrant a finding that the trials were unfair.

The prejudice in both cases was most obvious. In Estes the Supreme Court describes the scene of the trial.

Petitioner's case was originally called for trial on September 24, 1962, in Smith County after a change of venue from Reeves County, some 500 miles west. Massive pretrial publicity totaling 11 volumes of press clippings, which are on file with the Clerk, had given it national notoriety. All available seats in the courtroom were taken and some 30 persons stood in the aisles.

... Indeed, at least 12 camermen (sic ) were engaged in the courtroom throughout the hearing taking motion and still pictures and televising the proceedings. Cables and wires were snaked across the courtroom floor, three microphones were on the judge's bench and others were beamed at the jury box and the counsel table. It is conceded that the activities of the television crews and news photographers led to considerable disruption of the hearings. (381 U.S. at 535-536, 85 S.Ct. at 1629)

The Sheppard holding was also aimed at the total carnival...