State v. Riley

• Decision Date: 30 March 1987
• Citation: 216 N.J.Super. 383,523 A.2d 1089
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. John RILEY, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 383

216 N.J.Super. 383

523 A.2d 1089

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

Superior Court of New Jersey Appellate Division.

Argued Jan. 21, 1987.

Decided March 30, 1987.

Scott E. Becker, Atlantic City, for defendant-appellant (Becker & Lands, Atlantic City, attorneys).

Chana Barron, Deputy Atty. Gen., Trenton, for plaintiff-respondent (W. Cary Edwards, Atty. Gen., Trenton, attorney).

Before Judges BRODY and LONG.

The opinion of the court was delivered by

LONG, J.A.D.

In 1979 after a jury trial, John Riley was convicted of two counts of murder contrary to N.J.S.A. 2A:113-1 and 2 (currently N.J.S.A. 2C:11-2 and 3). He was sentenced to concurrent custodial terms of 30 years with 15 years of parole ineligibility. On February 23, 1982, the convictions were affirmed on appeal and in 1983 the Supreme Court denied Riley's petition for certification. State v. Riley, 93 N.J. 273, 460 A.2d 675 (1983). On September 12, 1984, Riley filed a petition alleging several grounds for post-conviction relief including the fact that one of the jurors at his murder trial, George Egbert, had had damaging information about Riley and was prejudiced against him thus denying him the right to a fair trial. After a hearing, on December 20, 1985, the trial judge denied the petition and Riley filed this appeal claiming that

The failure of a juror to disclose information known to him concerning the defendant prior to trial violated defendant's right to trial by impartial jury.

The facts surrounding this issue require explication. During the voir dire of prospective jurors at Riley's trial, Egbert answered all of the questions posed by the judge as to knowledge, information, bias or prejudice in the negative. Subsequent to the jury selection process Egbert brought himself to the attention of the judge and was individually questioned because he stated that he may have worked with Riley's mother at a restaurant at some time prior to trial. However, neither defense counsel nor the prosecutor objected to Egbert's sitting as a juror because it did not appear that a close relationship existed between him and Riley's mother and he said he could be fair and impartial.

Riley was represented at trial and on appeal by Frank Marcone, an attorney licensed in Pennsylvania, who was admitted pro hac vice for the purpose of defending him. In support of the petition for post-conviction relief on February 15, 1985, Marcone filed a certification with respect to the matter of Egbert:

1. I was the attorney for the defendant, John Riley, at the time of his trial in 1979 for which he is presently incarcerated. The appeal of that conviction was also handled by me. As a result I am fully familiar with the facts set forth herein.

2. At the commencement of the trial in this matter, following the selection of the jury, a juror, George Egbert, brought himself to the attention of the court. His stated reason for doing so was to inform the court that he may have been remotely acquainted with the defendant's mother as a result of having been employed at the Lobster Shack. However, Mr. Egbert was not positive of that fact.

3. Based upon the limited extent of any potential relationship, I did not move to have Mr. Egbert removed from the jury hearing Mr. Riley's case.

4. Subsequent to the time of the trial, I had occasion to see a juror in question, George Egbert. This was not a planned meeting, but occurred spontaneously in connection with my flying.

5. At that time Mr. Egbert stated that he had been aware of the defendant's bad reputation prior to the trial. He also believed that the defendant had assaulted his own mother and sister at times prior to the trial.

6. In sum, Mr. Egbert indicated that the crimes for which the defendant was convicted was the "best thing."

The trial judge held a hearing on the petition on March 29, 1985, after which he disposed of certain other issues not involved in this appeal. However, he declined to rule on the issue of Egbert's bias but asked for a more specific affidavit from Marcone. Marcone filed the following certification on May 24, 1985 1. I previously submitted an affidavit to this court regarding a conversation I had with George Egbert, a juror in the matter of State v. Riley. This affidavit is made by way of supplementation to the facts contained in the affidavit.

2. The conversation between Mr. Egbert and myself took place at a restaurant in Cape May sometime after the trial and again in a restaurant I believe in Media Pennsylvania wherein I determined that by my conversation with Mr. Egbert that he was then actually residing in Pennsylvania and was spending his weekends in Cape May, New Jersey.

There were no persons present who participated in the conversation and we met in a casual manner. The conversation was initially regarding the trial and eventually led to a short discussion of mutual friends, more particularly, a friend client, Clark Smith.

A plenary hearing was held on August 12, 1985, at which time Marcone was the sole witness. He reiterated the information in the certifications. According to Marcone, during the summer following the trial he had a chance meeting with Egbert in a bar in Cape May County. During the meeting Egbert indicated to Marcone that he had heard of Riley prior to the time of the trial and that Riley's bad reputation was well-known in Cape May. Specifically, Egbert told Marcone that Riley had previously beaten up his own mother and sister, and that Riley had sexually attacked his sister as well. According to Marcone, Egbert went on to relate that he was aware of these incidents prior to the time he sat as a juror, that Riley was essentially a bad character, who deserved punishment and that Egbert believed Riley had committed the crime just because of his reputation. Thereafter Marcone arranged to meet Egbert again in a restaurant in Media, Pennsylvania, the town in which Marcone practices law. At that time Egbert was reluctant to discuss the Riley case.

The trial judge questioned Marcone as to whether Egbert had discussed his opinions and knowledge of Riley with fellow jurors. Marcone indicated that he was left with the distinct impression that Egbert had discussed those matters with the other jurors. When questioned as to why he did not bring this to the attention of the court earlier Marcone explained that

... I know there's a rule in New Jersey that I'm not supposed to talk to a witness or to a juror and I had a little--I was a little uncomfortable about that He went on to say that his primary reason for not reporting the matter was that his public defender co-counsel felt that it was too late in the appellate process to raise a new issue (the case was already pending in the Supreme Court) and that it should be reserved. According to Marcone, he "was obliged to depend substantially upon their advice and by their advice also with their procedural recommendations."

The trial judge denied the petition for post-conviction relief. In a written opinion he outlined the facts related by Marcone whom he characterized as a "poor" and "unconvincing witness" and whose testimony he did not find "to be credible in any significant degree." The judge, however, did not decide the case on that basis. He went on to hold that:

1. The defendant has failed to make an initial showing, independent of his trial attorney's improper and unethical conversations with a juror, that misconduct occurred which tainted the verdict.

The court rules are very clear in New Jersey that no attorney should question any petit juror with respect to any matter relating to the case. The pertinent court rule reads as follows: "Rule 1:16-1 Interviewing Jurors Subsequent to Trial. Except by leave of Court granted upon good cause shown, no attorney or party shall himself or through any investigator or other person acting for him interview, examine or question any grand or petit juror with respect to any matter relating to the case."

The comment in the annotations under this Rule at page 116 indicates that the defendant must make an initial showing that misconduct occurred which tainted the verdict. The commentator states that "admittedly the ability to make such a showing depends largely on chance." As stated by the court in State v. LaFera, 42 N.J. 97, (1964) at page 107 : "It may appear odd to recognize a ground for the invalidation of a verdict while denying a litigant a chance to find out whether such an event perchance did occur. The fate of a defendant is thus made to depend upon sheer luck, that the wrongful event somehow comes to light. The weight of the criticism is appreciated, but when contending values clash in their demands, a balance must be struck, and the balance struck is not shown to be a poor one because in some unknowable cases there may be an injustice. Overall the instances of invalidating misbehavior are exceedingly few."

Rule 1:16-1 represents a strong judicial policy in New Jersey prohibiting litigants, their attorneys, or agents from engaging in post trial interviews with jurors. (Rule DR7-108(e) in effect at the time required attorneys to report such conversations to the court promptly).

In the case at hand, the defendant made no initial showing independent of his attorney, Mr. Marcone's, conversations with the juror to show good cause for this court to depose the juror. To hold otherwise, would make a mockery of the court rule, i.e. attorneys or their investigators could question jurors post trial and then seek to use any information improperly obtained to induce the court to depose the juror or jurors further. [emphasis in original]

We disagree with these conclusions and reverse.

We turn first to the State's assertion, which was not raised below, that Riley's claim is procedurally barred by R. 3:22-12. The jury returned its verdict on June 22, 1979. Riley was sentenced on September 18, 1979, and on the same date a judgment of conviction was...