State v. Singletary

The issue raised by this appeal is whether, under the facts of this case, the trial court’s refusal to excuse for cause a prospective juror who had been the recent victim of a crime similar in nature to that with which a defendant was charged constituted reversible error, where the juror was subsequently excused through defendant’s exercise of a peremptory challenge. The Appellate Division held that in the present case such a refusal amounted to prejudicial error, and ordered that defendant be given a new trial. We conclude that the trial court’s decision did not transcend the bounds of reasonable discretion and that defendant received a fair trial. Consequently, we reverse and reinstate the conviction.

The facts of this ease are essentially undisputed. On October 21, 1975, defendant and one Eugene Leggett were indicted by a Passaic County Grand Jury for robbery while armed, in violation of N. J. S. A. 2A:141-1 and N. J. S. A. 2A.T51-5. The charges arose out of an August 18, 1975 hold-up of Robert Sandifer, an employee at Chuck’s Wrigley Park Tavern in Paterson. The two men were tried separately and Leggett is not involved in this appeal.

Juror selection at defendant’s trial commenced on January 23, 1976. Prospective jurors were closely questioned by the court concerning their relationship with persons participating in the ease or employed in the law enforcement field; their involvement as victims in prior crimes; personal background; and their ability and willingness to serve fairly and impartially. At the conclusion of the day’s proceedings, 17 peremptory challenges had been exercised by the defense, 9 had been utilized by the State, and 4 prospective jurors had been excused for cause by the trial judge.

Jury selection continued on January 26. After one prospective juror was excused due to acquaintance with State witnesses and another was peremptorily challenged by the defense, venireman Kenneth J. Sheeran was called. During the court’s voir dire examination of Sheeran, the following colloquy occurred:

Q. Have you been the victim of a crime?

A. Yes.

Q. Will you tell me when, and the nature?

A. I work for a bank in New York City and it was held up on January 9th.

Q. January 9th of this year?

A. Of this year, yes, sir.

Q. Do you feel that that particular event, having been so recent, would have any effect on your ability to sit as a fair and impartial juror in this ease?

A. No. I do not.

ft; * * & * & *

Q. Mr. Sheeran, will you apply the law as I will explain it to be regardless of any personal feeling you have about that law?

A. Yes.

Q. Do you have any bias or prejudice against a person simply because he’s charged with a crime?

A. No.

Q. Do you know anything about this particular case?

A. No I do not.

Q. Do you or any members of your family have any interest in the outcome of a criminal case now pending in our courts?

A. No.

Q. Have you ever been party to, or personally interested in the outcome of a criminal case?

A. No.

Q. Would you give any greater or less weight to the testimony of a police officer simply because of his official capacity?

A. No.

Q. Mr. Sheeran, if you’re selected to serve on this jury, would you be a fair and impartial juror to both the State and to the defendant?

A. Yes, I will.

After' a brief sidebar conference, the questioning continued as follows:

Q. Mr. Sheeran, in connection with the bank robbery, which you’ve mentioned which occurred just a few weeks ago, were you actually involved in that particular robbery . . .

A. Yes.

Q. (continuing) or was it just a robbery in your particular branch?

A. No, I was involved in it.

Q. Was it an armed robbery?

A. Yes, it was.

Q. And do you feel that that particular circumstance, considering that this case involves a charge of robbery and being armed during the commission of the robbery, that that particular event so recently would not affect your ability in any way to sit on this case?

A. No, I do not.

The defense then exercised its 19th peremptory and dismissed Sheeran. Thus, Sheeran did not in fact sit as a juror in defendant’s trial.

The sidebar conference which occurred during the interrogation of Mr. Sheeran involved a request by defense counsel that Sheeran be questioned as to the extent of his involvement in the bank robbery. Counsel indicated that if Sheeran were, in fact, an actual victim of the crime he would move for his excusal for cause. The trial court, in response to these remarks, stated that inasmuch as Sheeran professed an ability to be fair and impartial no challenge for cause would be granted.

Subsequent to Sheeran’s dismissal, three veniremen were peremptorily excused: two by the State and one by defense counsel — who thereby exercised his final peremptory challenge. Einally, a jury of 14 was selected and empanelled. Defense counsel stated for the record his version of the sidebar conference, noted his contention that Sheeran should have been excused for cause, and emphasized that he had been required to exhaust his entire complement of peremptory challenges.

The actual trial spanned two days. The State’s case rested largely on the testimony of Robert Sandifer, the alleged victim of the robbery. Sandifer identified the defendant as one of three men who threatened him with a revolver, held him up and took his money along with a case of scotch and a small amount of cash belonging to the tavern. The defense both attacked the accuracy of Sandifer’s identification and attempted to establish an alibi.

The jury found defendant guilty of the robbery and further concluded that he had been armed during its commission. Defendant was sentenced to an aggregate of 10-13 years, including 6-8 years for the robbery and a consecutive 4-5 year term for being armed.

The Appellate Division, one judge dissenting, reversed the conviction. State v. Singletary, 156 N. J. Super. 303 (App. Div. 1978). In its view, the failure to excuse venireman Sheeran for cause constituted prejudicial error. The State filed an appeal as of right to this Court pursuant to B. 2:2-1 (a) (2).

Defendant claims that the trial court’s refusal to excuse venireman Sheeran for cause constituted prejudicial error in that he was deprived of his full complement of twenty peremptory challenges. It must be emphasized that this denial of peremptory challenges is defendant’s sole ground of appeal. Defendant has not alleged that the jury ultimately empanelled was other than impartial nor has he contended that his trial was less than fair. Rather, he maintains that the erroneous denial of a challenge for cause is per se prejudicial in any case in which a defendant is thereby compelled to exhaust his peremptories.

Were we of the view that the trial judge had in fact erroneously deprived defendant of a peremptory challenge, his contentions in this regard would merit serious consideration by this Court. Jury selection is an integral part of the process to which every criminal defendant is entitled. Although not constitutionally required to do so, see Brown v. State, 62 N. J. L. 666 (E & A 1899), the Legislature and this Court have sought to insure that the triers of fact will be “as nearly impartial ‘as the lot of humanity will admit’” by providing defense counsel with twenty peremptory challenges. State v. Jackson, 43 N. J. 148, 158 (1964), cert. den. sub nom. Ravenell v. New Jersey, 379 U. S. 982, 85 S. Ct. 690, 13 L. Ed. 2d 572 (1965). See N. J. S. A. 2A:78-7(c); R. 1:8-3 (d). As such, “[t]he denial of the right of peremptory challenge is the denial of a substantial right.” Wright v. Bernstein, 23 N. J. 284, 295 (1957); see, e.g., State v. Jackson, supra; United States v. Allsup, 566 F. 2d 68 (9th Cir. 1977); United States v. Nell, 526 F. 2d 1223 (5th Cir. 1976); State v. Holliman, 529 S. W. 2d 932 (Mo. Ct. App. 1975).

Having carefully considered the record of the proceedings below, however, we have concluded that the trial court’s refusal to excuse Sheeran did not amount to error. We have long held that trial courts are “vested with broad discretionary powers in determining the qualifications of jurors and [a judge’s] exercise of discretion will ordinarily not be disturbed on appeal.” State v. Jackson, supra, 43 N. J. at 160; see, e. g., State v. Simmons, 120 N. J. L. 85, 90 (E & A 1938). The reasons underlying this appellate defer-enee to the assessments made by trial judges are not difficult to fathom. Decisions concerning the potential bias of prospective jurors are primarily subjective in nature. They require at bottom a judgment concerning the juror’s credibility as he responds to questions designed to detect whether he is able to sit as a fair and impartial trier of fact. Consequently, such evaluations are necessarily dependent upon an observation of the juror’s demeanor during the course of voir dire — observations which an appellate court is precluded from making.

To be sure, in certain circumstances a venireman’s potential for bias is sufficiently indicated by his past experiences that a refusal to excuse for cause will necessitate a reversal. See, e. g., State v. Jackson, supra (failure to excuse juror who was friend of key State witness); State v. Holliman, supra (failure to excuse juror who was friend of the murder victim). Cf. State v. Deatore, 70 N. J. 100 (1976) ("close relationship” between juror and victim requires excusal for cause). In the majority of cases, however, whether or not to dismiss the challenged juror is heavily dependent upon subjective evaluations of his credibility.

Encompassed within this latter category are challenges predicated upon a juror’s recent involvement in a crime similar to that with which a defendant is charged. See State v. Grillo, 16 N. J. 103 (1954). Unlike situations in which the venireman is acquainted with persons who will testify at trial, see State v. Jackson, supra; State v. Deatore, supra, a juror’s recent criminal victimization does not always give rise to such a great risk of bias that excusal for cause must be ordered. As we emphasized in Grillo,

the imputation of bias to [such a juror] as a matter of law, because he once had been the victim of highway robbery is only surmise and speculation and “* * •* would be no more sensible than to impute bias to all storeowners and householders in eases of larceny or burglary.”

[ 16 N. J. at 113 (quoting from Dennis v. United States, 339 U. S. 162, 167, 70 S. Ct. 519, 521, 94 L. Ed. 734, 740 (1950)]

Instead, we noted that the decision concerning excusal was dependent upon an evaluation of all the facts and circumstances surrounding the crime and the juror’s ability to act impartially. Id. 16 N. J. at 113-114.

In the present case, the trial court questioned Sheeran extensively and concluded from his responses that he could, in (fact, be impartial. Although a juror’s professions of impartiality will not always insulate him from excusal for cause, see, e. g., State v. Jackson, supra; State v. Deatore, supra, they will be accorded a great deal of weight, see, e. g., State v. Grillo, supra; State v. Jefferson, 131 N. J. L. 70, 72 (E & A 1943). Inasmuch as the trial judge observed the venireman’s demeanor, he was in a position to accurately assess the sincerity and credibility of such statements, and we should therefore pay due deference to his evaluation of Sheeran’s qualifications.

Under these circumstances, and in light of the absence of any allegations of bias or unfairness in the trial itself, there is no need to order a new trial. Although it might well have been the wiser course to have excused venireman Sheeran for cause, the failure to do so was not so clearly an abuse of discretion as to necessitate reversal on this ground alone.

We emphasize, however, that neither Grillo nor this opinion should be read as holding that prospective jurors who were recent crime victims should not be excused for cause. Quite the contrary, a juror’s involvement in a recent similar crime will often require an excusal. See, e. g., Salazar v. State, 562 S. W. 2d 480 (Tex. Crim. App. 1978); Durham v. State, 182 Tenn. 577, 188 S. W. 2d 555 (Sup. Ct. 1945). In most eases, such involvement will give rise to a substantial risk that the jury is not “entirely free from the taint of extraneous * * * influences.” Wright, supra, 23 N. J. at 295 (1957). Moreover, failure to excuse such a venireman may well undermine the image of justice — a concern which we have deemed an important component of our criminal system. See State v. Jackson, supra, 43 N. J. at 160-161.

Our trial judges must understand that in most situations denials of challenges for cause predicated upon a juror’s recent victimization will not be tolerated. All doubts concerning a juror’s “‘sense of fairness or . . . mental integrity’ ” should be resolved by dismissing the challenged venireman. State v. Jackson, supra, 43 N. J. at 160. “ ‘If error is to be committed, let it be in favor of the absolute impartiality and purity of the jurors.’” Id.

Defendant also contends that his custodial sentence of 10-13 years, consecutive to any period of incarceration imposed for violation of parole, is manifestly excessive. We find no mistaken exercise of discretion in the imposition of this sentence.

Accordingly, the judgment of the Appellate Division is reversed and the convictions reinstated.

Pursuant to N. J. S. A. 2A:78-7(c), the defense is entitled to 20 peremptory challenges and the State is allowed 12. R. 1:8-3 (d).

These veniremen were excused either because they were acquainted with the owner of the tavern where the robbery occurred or were familiar with State witnesses.