State v. Smith

• Citation: 262 A.2d 868,55 N.J. 476
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. John William SMITH, Defendant-Appellant.
• Decision Date: 16 March 1970
• Court: United States State Supreme Court (New Jersey)

Page 476

55 N.J. 476

262 A.2d 868

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

Supreme Court of New Jersey.

Argued Dec. 15 and 16, 1969.

Decided March 16, 1970.

Harris David, Newark, and Raymond Brown, for appellant (Oliver Lofton, Newark, attorney, Edward Carl Broege, Jr., Newark, of counsel).

M. Richard Altman, Asst. Prosecutor, for respondent (Joseph P. Lordi, County Prosecutor of Essex County, attorney).

PER CURIAM.

The Essex County Grand Jury returned indictments which charged the defendant John William Smith with having committed assaults and batteries on police officers John De Simone and Vito M. Pontrelli. His motion to dismiss the indictments was denied (State v. Smith, 102 N.J.Super. 325, 246 A.2d 35 (Law Div. 1968)) and, after trial, the jury failed to agree on the Pontrelli matter but found the defendant guilty of having committed an assault and battery on Officer De Simone. The defendant appealed to the Appellate Division and we certified before argument there.

The officers testified that while they were traveling west in a police car along 15th Avenue, the defendant driving a taxicab behind them went into the eastbound lane and passed them at the intersection of 15th Avenue and South Seventh Street. They followed the cab and brought it to a stop on 15th Avenue between Ninth and Tenth Streets. When they asked the defendant for his license and registration he became abusive and was placed under arrest. Officer De Simone ordered him out of the cab but the defendant first held on to the door and then suddenly opened it, striking it against the officer's chest. The defendant jumped from the cab, cursing and swinging and then struck Officer De Simone in the mouth with his fist. Officer Pontrelli came to De Simone's assistance and, after a struggle, the defendant was subdued and forced into the rear of the police car. The foregoing version of the incident was supported by the testimony of both officers. In addition Officer Citarella, who came quickly to the scene on a police radio call, testified that he saw De Simone bleeding from his lip and De Simone said that he 'got whacked,' he 'got hit.' The trial judge told the witness not to tell what he was told. But Cf. State v. Simmons, 52 N.J. 538, 541--542, 247 A.2d 313 (1968). Dr. Kredenser testified that he treated Officer De Simone for a superficial laceration of the lower lip, applied merthiolate, put on some gentian violet and 'gave him tetanus toxoid, too.'

The defendant denied that he struck either of the officers. He testified that when he passed the police car it was double parked and thereafter, when he was signaled by the police car to stop, he pulled into a vacant space along the curb. He was asked for and produced his driver's license and registration and one of the officers said 'you popped the intersection' which the defendant took to mean that 'he was playing games.' The defendant replied that the police car was double parked but the officers said that it was 'in motion.' At that point the defendant said 'go ahead and do what you want to do' because he figured he 'would get a ticket and go back to work.' The officers then told him that he was under arrest and he got into the police car. The defendant denied that he cursed or struck either officer but testified that while he was in the police car being driven to the precinct headquarters and later at the headquarters he was beaten by the officers. The officers denied this and, in view of the indictments and the trial issue, the jury was called upon to determine only whether the State had established beyond reasonable doubt that the defendant, when he emerged from the cab, had assaulted the police officers, as they flatly asserted and he flatly denied. The jury credited the officers' testimony that the defendant had struck Officer De Simone and its finding of guilt is not attacked before us as being against the weight of the evidence. R.R. 1:5--1 (now R. 2:10--1); State v. Williams, 39 N.J. 471, 490, 189 A.2d 193, cert. denied, 374 U.S. 855, 83 S.Ct. 1924, 10 L.Ed.2d 1075 (1963), 382 U.S. 964, 86 S.Ct. 449, 15 L.Ed.2d 366 (1965).

In support of his appeal, the defendant's brief advances nine points of alleged error which will be dealt with in the order of their presentation. The first asserts that '(t)he substantial under-representation of four identifiable classes of citizens, to wit, Negroes, women, persons of low incomes, and residents of Newark on the grand and petit jury lists violated the defendant's constitutional rights and rendered his indictment and conviction invalid. This point was dealt with adequately by Judge Giuliano in the Law Division; we agree essentially with his opinion (102 N.J.Super. at 344--357, 246 A.2d 35) and find no sufficient showing of any constitutional infirmities in the pertinent Essex County grand and petit jury lists. Cf. State v. Rochester, 54 N.J. 85, 253 A.2d 474 (1969) where we affirmed Judge Botter's rejection of a somewhat comparable attack on the Bergen County jury lists and noted specifically the recent steps which have been taken towards truly random selection throughout our entire State not only of petit jurors but of grand jurors as well. 54 N.J. at 91--92, 253 A.2d 474.

In his second point the defendant contends that the 'widespread and adverse publicity that surrounded the proceedings below' denied to him a fair and impartial 'grand jury hearing and trial.' The disorders and lawlessness which took place in Newark in the summer of 1967 were said by some to have been triggered by the defendant's arrest. There was extensive publicity but this was largely in July 1967 and the defendant's trial did not begin until the latter part of March 1968. When the jury was being selected for the defendant's trial, court and counsel took great pains to make certain that those selected would be fair and impartial jurors, who had little or no recollection of any pertinent earlier publicity, and who would be in sound position to decide the case on the evidence and the legal instructions presented during the trial. The Voir dire was substantially unrestricted, it consumed much time, and careful examination of it supports the conclusion that a fair and impartial jury was actually obtained. See State v Ravenell, 43 N.J. 171, 181, 203 A.2d 13 (1964), cert. denied, 379 U.S. 982, 85 S.Ct. 690, 13 L.Ed.2d 572 (1965). We find nothing in the record to indicate that the defendant's right to a fair trial was prejudiced by the earlier publicity; nor do we find anything to indicate that the publicity prejudiced the defendant insofar as the grand jury proceedings were concerned. The grand jury would have no reason for not returning indictments in view of the testimony of the police officers and there is nothing whatever before us to suggest that the indictments were returned on any improper basis or in any improper manner. See 102 N.J.Super. at 339--344, 246 A.2d 35; Cf. State v. Borg, 9 N.J.Misc. 59, 152 A. 788 (Sup.Ct. 1931).

The defendant's third point attacks the constitutionality of the statutory oaths required of grand and petit jurors. N.J.S. 2A:73--3; N.J.S. 2A:69--1.1, N.J.S.A. The Law Division expressly held, Inter alia, that the oath requirements were constitutional. 102 N.J.Super. at 335--337, 246 A.2d 35. Construed and applied narrowly (Cf. Application of Walter Marvin, Jr., 53 N.J. 147, 249 A.2d 377, cert. denied, 396 U.S. 821, 90 S.Ct. 62, 24 L.Ed.2d 72 (1969)), they should readily withstand constitutional attack. See 102 N.J.Super. at 336--337, 246 A.2d 35; Konigsberg v. State Bar of California, 366 U.S. 36, 49--52, 81 S.Ct. 997, 6 L.Ed.2d 105, 116--117 (1961); American Communications Assoc. v. Douds, 339 U.S. 382, 412--413, 70 S.Ct. 674, 94 L.Ed. 925, 951--952 (1950). However, we need not pursue the issue here for we are satisfied that the defendant was not, in any event, harmed by the oath requirements. He was not a member of any group which might be excluded because of the oaths (102 N.J.Super. at 333, 246 A.2d 35) and, more importantly, there was no suggestion that any prospective grand or petit jurors had actually declined to take the oaths or had been excluded because of them. The circumstances make it evident that the 'probability of prejudice', referred to in the defendant's brief, was entirely absent; indeed the danger of prejudice was so remote as to be viewed as nonexistent.

In his fourth point, the defendant asserts that the trial court improperly refused to allow his counsel to make challenges for cause out of the hearing of prospective jurors. The first time counsel asked to make a challenge for cause at the bench he was permitted to do so and the challenge was sustained. The second time the court told him to make his challenge in open court and it was also sustained; it may be that the court, knowing its probable ruling in this particular instance, thought time would be saved that way. Later counsel made challenges for cause without requesting permission to come to the bench. When at one point counsel said that he felt compelled to exercise peremptory challenges because the court had instructed him 'that challenges for cause could not be heard at side bar,' the trial judge said 'I did not say that.' Later when counsel asked, he was again permitted to come to the bench for the purpose of making a challenge for cause. All in all it may not fairly be said that the trial court had made any general ruling prohibiting challenges for cause at side bar. The subject matter was clearly one within the trial court's discretion and there is nothing to indicate any improper exercise of that discretion or any prejudice to the defendant.

We find no merit in the defendant's fifth point which asserts that the prosecutor's use of peremptory challenges to exclude Negroes (the defendant was a Negro) from the petit jury violated his constitutional rights. The prosecutor and defense counsel each had ten...