State v. Zicarelli

• Decision Date: 18 November 1977
• Citation: 381 A.2d 398,154 N.J.Super. 347
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Joseph A. ZICARELLI, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 347

154 N.J.Super. 347

381 A.2d 398

STATE of New Jersey, Plaintiff-Respondent, v. Joseph A. ZICARELLI, Defendant-Appellant.

Superior Court of New Jersey, Appellate Division.

Argued Oct. 24, 1977.

Decided Nov. 18, 1977.

Harvey Weissbard, West Orange, for defendant-appellant (Isles, Newman & Weissbard, West Orange, attorneys).

Anthony J. Parrillo, Deputy Atty. Gen., for plaintiff-respondent (William F. Hyland, Atty. Gen., attorney).

Before Judges ALLCORN, MORGAN and HORN.

The opinion of the court was delivered by

MORGAN, J. A. D.

The present appeal constitutes yet another chapter in defendant Zicarelli's strenuous attempts in both federal and state courts to overturn his convictions of conspiracy and bribery in Hudson County founded upon Burlington County jury verdicts. The extended history of the appellate litigation concerning the several interrelated Sixth Amendment and due process claims raised by the fact that a Burlington County jury decided defendant's culpability with respect to offenses which occurred in Hudson County need not be recounted here because of the comprehensive account thereof contained in the most recent appellate effort to resolve them. See Zicarelli v. Gray, 543 F.2d 466 (3 Cir. 1976) (en banc). We need only commence consideration of this matter with the issues left unresolved by Zicarelli v. Gray for defendant's failure to have exhausted his state remedies with respect thereto.

The Third Circuit Court of Appeals described two issues raised by Zicarelli in his efforts to obtain release from custody, both of which involved claimed Sixth Amendment violations. That court described his contentions made in that proceeding in the following terms:

* * * The first is that the trial before a jury drawn from Burlington County violated his right to be tried by a jury composed of residents of the county where the crime was committed; the second is that the procedures employed by the state in assembling the jury violated the cross-section concept of the sixth amendment.

A third issue was raised for the first time during oral argument of that appeal and this, in the words of the court, was "that the 'district' from which the trial jury was chosen was not previously ascertained by law, as required by the sixth amendment." Id. at 470.

Satisfied that Zicarelli exhausted state remedies as to the first issue, the Third Circuit agreed to resolve it. That issue involved Zicarelli's claimed right to be tried by a jury drawn from Hudson County, the county where the offenses occurred. His contention was rejected, the court holding that:

* * * Zicarelli's federal constitutional rights were not transgressed when the State of New Jersey tried him before a jury drawn from Burlington County on charges of criminal activity that occurred in Hudson County. The petit jury was drawn from both the state and the federal judicial district within which the crimes occurred, and the state-and-district guarantee of the Constitution promises no more. (Id. at 482).

Left for our resolution, on defendant's application therefor, and because the court perceived that the question had received no state consideration during the state appeal process, were the two remaining questions: (1) the so-called cross-section requirement and (2) the requirement that the county in which Zicarelli was tried be within a district previously ascertained by law within the meaning of the Sixth Amendment.

Following rendition of Zicarelli v. Gray, supra, defendant commenced post-conviction proceedings in this State raising the two unresolved issues. As a factual predicate for the requested post-conviction relief with respect to cross-section requirement, Zicarelli offered the following official data from the 1970 census:

(a) Hudson County is the smallest and, with nearly 14,000 people per square mile, the most densely populated county in the state. Burlington is the largest county in terms of square miles and, with some 274 people per square mile, one of the most sparsely populated.

(b) Burlington is one of our agricultural counties, with more acres devoted to farming than any other county. Hudson, of course, is largely industrial.

(c) 42.1% Of the people in Hudson County are of foreign stock as compared with only 15.4% Of the population in Burlington.

(d) In Hudson County some 46.3% Of the people have a language other than English as their mother tongue; compared with slightly under 19% In Burlington County. For example, there are seven times as many Spanish speaking people in Hudson as in Burlington.

(e) In Hudson County around 36% Of the people have graduated from High School compared with roughly 60% In Burlington County.

Zicarelli's petition was rejected by the trial judge who concluded that, notwithstanding the census data supplied, the demographic differences between the population of Hudson and Burlington Counties were not of such quality or quantity as to warrant the conclusion that the jury excluding Hudson County participation therein and drawn exclusively from juror lists in Burlington County failed to represent a fair cross-section of the community. He also rejected defendant's other ground for the petition that the district in which he had been tried was not previously ascertained by law; rather he accepted as valid the State's argument that a state trial in the federal judicial district in which the offense occurred was sufficient compliance with that constitutional mandate. Defendant appeals.

We commence consideration of the issues raised herein with the Sixth Amendment to the United States Constitution (binding on the states, Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968)), wherein are enumerated several procedural rights guaranteed an accused "in all criminal prosecutions." Among the enumerated guarantees is the right to be tried by "an impartial jury of the State and district wherein the crime shall have been committed * * * which district shall have been previously ascertained by law * * * ." One essential characteristic of an impartial jury identified by the United States Supreme Court is that it be drawn from a fair cross-section of the community. ¹ Taylor v. Louisiana, 419 U.S. 522, 526-531, 95 S.Ct. 692, 695-698, 42 L.Ed.2d 690, 696-698 (1975).

The so-called "cross-section requirement" implicit in, but not expressly referred to in the Sixth Amendment, does not entitle those accused of crime to a jury of any particular composition; rather the methods chosen for jury selection, the "jury wheels, pools of names, panels or venires from which juries are drawn must not (be designed to) systematically exclude distinctive groups in the community and thereby fail to be reasonably representative thereof." 419 U.S. at 538, 95 S.Ct. at 702, 42 L.Ed.2d at 703. Hence, jury selection methods which excluded all women from panels from which petit juries were drawn were held constitutionally offensive, and this where the defendant concerned was male. Taylor v. Louisiana, supra. Systematic exclusion of blacks from jury panels was similarly condemned at the suit of a Caucasian in Peters v. Kiff, 407 U.S. 493, 92 S.Ct. 2163, 33 L.Ed.2d 83 (1972). See Williams v. Florida, 399 U.S. 78, 100, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970). Although eschewing any intention of imposing upon states any particular conception of the proper source of jury lists, that court nonetheless required that whatever method is chosen, such lists must reasonably reflect "a cross-section of the population suitable in character and intelligence for that civic duty." Brown v. Allen, 344 U.S. 443, 474, 73 S.Ct. 397, 416, 97 L.Ed. 469, 498 (1953).

None of these cases, or those similar thereto, purports to specify the geographical area from which jurors must be drawn since in none of these cases was venue of the trial in dispute. Each accepted the venue as given and the sole concern was whether the method for jury selection operated to exclude "distinctive groups" in that community and "thereby fail to be reasonably representative (of that community)." Taylor v. Louisiana, supra.

Here the concerns are different. Defendant does not contend that the methods selected for choosing his Burlington County jury operated or were designed to exclude any distinctive racial, ethnic or social group present within the Burlington County population. Indeed, Zicarelli v. Gray, supra, held that the methods used comported with Sixth Amendment requirements. Rather, defendant contends that the Burlington County pool from which his jurors were chosen failed to mirror in its essential demographic characteristics a pool similarly drawn from the Hudson County citizenry. It was in pursuit of this theory that he produced, for consideration by the trial judge on his post-conviction petition, demographic statistical data derived from the 1970 U.S. Census figures which demonstrated some undeniable differences between the two groups.

We agree with the trial judge in his evaluation of these proofs and as to his conclusions rejecting defendant's thesis. Although Hudson County is largely urban in character while Burlington County is predominantly rural, although there are differences between the population of the two counties in terms of education, income and occupation, no expert proof was adduced suggesting that such differences would have any bearing upon the jurors' inclinations as to the evaluation of evidence submitted for their consideration. Moreover, nothing in such statistics suggests that residents of Hudson County constitute a distinctive group in the community such that their exclusion would deprive a jury drawn without them of its cross-sectional quality in violation of Sixth Amendment guarantees. Further, defendant has never even suggested at any of the many stages of appeal that Burlington County was specifically chosen by the State as the venue of his trial in order to obtain a jury more willing to convict.

More fundamentally, however, we disagree...