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State v. Kociolek

December 5, 1955


On appeal from Superior Court, Law Division.

For reversal -- Chief Justice Vanderbilt, and Justices Heher, Jacobs and Brennan. For affirmance -- Justices Oliphant, Wachenfeld and Burling. The opinion of the court was delivered by William J. Brennan, Jr., J.


Defendant appeals from his conviction of murder in the first degree for shooting and killing Walter Edwards on December 27, 1954 while riding with Edwards in the latter's truck on Ocean Heights Avenue, near Mays Landing, Atlantic County. The jury did not recommend life imprisonment, and the mandatory death sentence was imposed.

The defendant sought a new trial on the basis of an affidavit of one of the jurors disclosing that the jury arrived at the agreement not to recommend mercy only after some of the jurors recalled, and the entire jury then considered, another indictment against the defendant, not in evidence, to which the defendant, two weeks before the jury was drawn for this trial, pleaded not guilty within the hearing of the jury panel of which they, or several of them, were members. The motion for a new trial was denied on the ground that the jurors could not be heard to say "what they discussed in the course of their deliberations."

The State does not challenge the truth of the contents of the affidavit but meets the defendant's attack upon the trial judge's ruling with the contention that the statements in the affidavits are in no wise probative to support the motion for a new trial but are to be deemed in law to relate the "mental operations" of the jurors not receivable in evidence to impeach the verdict.

The indictment in question charged an alleged offense having no connection whatever with the Edwards murder. It alleged robbery and assault with intent to kill one William Glenn at Absecon on December 27, two days before Edwards was killed.

The jurors retired to consider their verdict about three o'clock in the afternoon of Thursday, April 28, 1955. The juror's affidavit states that within six hours they reached unanimous agreement upon the defendant's guilt. Four hours later, shortly before one o'clock of Friday morning, April 29, the foreman sent the trial judge a note which stated, "The jury agrees that the defendant is guilty but

cannot reach a decision on the chair or life imprisonment." The judge instructed the jurors to continue their deliberations; but finally, at 2:15 A.M., sent them to their hotel for sleep with direction to return and resume deliberations at 11 A.M. They resumed at the appointed time, and returned their verdict of guilty of murder in the first degree, without recommendation of life imprisonment, at 5:45 that afternoon, April 29.

The juror's affidavit states that in the session after 11 A.M. on April 29 when "the jury were eight in favor of life imprisonment and four in favor of the death penalty," "there was injected into the discussion of the problem the assertion by several members of the jury that the defendant was the same as the one who was charged with atrocious assault and battery [ sic ] on one William Glenn on December 27, 1954, one [ sic ] day before the date of the commission of the crime which was the subject of the present action * * *. Thereafter, during the course of deliberations, the Glenn incident became a part of these deliberations * * *."

The State could not have proved the Glenn indictment at the trial for the purpose of showing that the defendant, being under indictment for allegedly committing another crime of a like nature, would be likely to commit the Edwards murder, Bullock v. State, 65 N.J.L. 557 (E. & A. 1900), or even for the purpose of affecting defendant's credibility when he testified in his own behalf, State v. De Paola, 5 N.J. 1, 10 (1950); Roop v. State, 58 N.J.L. 479 (Sup. Ct. 1896). Indeed, in State v. Cooper, 10 N.J. 532, 555 (1952), a new trial was ordered, in part because it appeared that the prosecutor, under guise of attacking the accused's credibility, asked questions intimating the commission of other crimes by the accused without having information that the accused had been convicted of such crimes.

The trial judge was commendably precautious to avoid the chance of reversible error from reference at the trial to the Glenn indictment. In his oral conclusions denying a new trial, he said, "During the entire trial no mention was made by the State, no mention was made by defense counsel,

and the court was ever careful in cooperation with counsel to see that no reference was made in any manner whatsoever to the Glenn incident."

And the jury's action was taken in the face of explicit instructions from the judge, obviously prepared with considerable care, to reach their verdict upon the evidence, and nothing but the evidence. The court's charge was:

"* * * your duty is to render a verdict based upon the evidence to which you have here listened for these past several days, not upon any theory not supported by that evidence but upon the evidence so produced before you. Your verdict is to be a true one based upon that evidence. * * * You are to be guided solely and wholly by the facts and evidence adduced in this case and as you have heard it. Your verdict is not to be based upon anything else. You have sworn before God that you would render a true verdict according to the evidence. That is the full measure of your duty in this case. * * *; you will be unjust in every aspect of the case if you do not determine it solely upon the facts and upon nothing else * * *." (Emphasis added)

Thus, not only is the law always zealous to protect every accused from a verdict prejudiced by the taint of extraneous influence, but the trial judge here was especially vigilant to protect this defendant from that mishap. It will not be gainsaid that any evidence of the Glenn indictment would be calculated to disparage the defendant in the minds of the jurors. There is general accord that a new trial should be directed upon proof merely that evidence of this sort came irregularly before the jurors and was considered by them, without the court either speculating upon or inquiring into the actual effect of the matter upon their verdict. In Mattox v. United States, 146 U.S. 140, 13 S. Ct. 50, 36 L. Ed. 917 (1892), the defendant was sentenced to death for the murder of one John Mullen. The United States Supreme Court held that the trial court erred in denying a new trial, it appearing that during the deliberations one of the jurors brought a newspaper to the jury room and read aloud an account of the trial in which appeared a statement that Mattox was previously tried upon another murder charge or charges. There was also proof that a bailiff in attendance [20 NJ Page 97] upon the jury made like statements to some of the jurors. In State v. McCormick, 57 Kan. 440, 46 P. 777 (Sup. Ct. 1896), it was held error for the court on a motion for a new trial to refuse to hear evidence that during the jury's deliberations one juror stated that the accused was convicted on a former trial. In McDougall v. State, 81 Tex. Cr. R. 179, 194 S.W. 944, L.R.A. 1917 E, 930 (1917), a conviction was set aside where it appeared that prior to the discussion by the jury of a former trial and conviction not in evidence ten of the jurors were in favor of fixing punishment at 19 years and two were for a less number of years, and after the discussion the punishment was fixed at 19 years. In Richards v. State, 36 Neb. 17, 53 N.W. 1027 (Sup. Ct. 1893), a conviction for rape was reversed where it appeared that during the deliberations of the jury two of its members stated that the accused had ruined other girls and was an improper person to run at large and should be convicted on general principles. In State v. McChesney, 114 Wash. 113, 194 P. 551 (Sup. Ct. 1921), a conviction upon prosecution for cattle theft was reversed when it appeared that one of the jurors who had lost some cattle stated his suspicion that the accused was the thief. In Mitchell v. State, 36 Tex. Cr. R. 278, 33 S.W. 367 (1896), a conviction for homicide was set aside where one or two jurors stated after the jury's retirement that the accused had previously killed another man, it appearing that after such statements were made the attitude of the jury changed from a ...

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