For reversal -- Justices Burling, Jacobs, Francis, Proctor, Hall and Schettino. For affirmance -- None. The opinion of the court was delivered by Hall, J.
[33 NJ Page 268] The State appeals from an order of the Essex County Court setting aside the defendant's conviction in 1952 for first-degree murder and granting him a new trial. He had been sentenced to life imprisonment pursuant to the recommendation of the jury. The court below held that a decision of the United States Court of Appeals for the Third Circuit in a federal habeas corpus proceeding which had resulted in the granting of similar relief on constitutional grounds to two others, DeVita and Grillo, indicted and tried with Rosania for the same crime, but who received the death penalty at the hands of the jury, also redounded to his benefit. United States ex rel. DeVita v.
In determining whether the County Court was in error in so concluding, as the State here contends, we must initially summarize the facts of the crime and the long course of litigation that has come out of it. The indictment was for felony murder based upon a killing ensuing from the commission of a robbery. N.J.S. 2 A:113-1 and 2. On November 9, 1951, a uniformed special police officer of the City of Newark was shot and killed in a holdup. He was accompanying the manager of a food market carrying the store receipts to a bank for night deposit. As soon as the two entered an automobile in front of the market on Newark's busiest street to start for the bank, two men, Grillo and DeVita, approached the car with drawn revolvers and demanded the money. As the officer raised his hands, he was shot by Grillo who then took the bag containing the receipts and fled with DeVita. Rosania, a former employee of the market, was not present at the immediate scene, but was instrumental in plotting the robbery. He had originally suggested it and, in fact, resumed his employment for one day a week before the crime to "case" the nightly bank deposit operation for the information of his confederates. On the night in question he assisted in obtaining the guns from their storage place in a railroad station locker and went with the other two to a bench in a park facing the market where all three perfected the plan. Rosania pointed out the manager and the special officer inside the store to Grillo and DeVita. Fearing recognition by former fellow employees, he then left, after arranging with his associates to telephone him at a diner after the holdup was completed. This DeVita did. Rosania asked what happened in the robbery and then picked both of them up in a friend's car. The three were arrested a few days later and confessed fully to the police. Some
of the robbery proceeds were found and the murder weapon recovered. In such a situation Rosania, by aiding and abetting in the commission of the felony, was punishable as a principal on the murder charge to the same extent as the one who fired the fatal shot. N.J.S. 2 A:85-14, 2 A:113-4. State v. Smith, 32 N.J. 501, 521 (1960).
As the Court of Appeals said, "The real problem before the trial jury was whether its verdict should be 'guilty' without any recommendation (in which event the death penalty was mandatory) or 'guilty' with a recommendation of life imprisonment." 248 F.2d, at p. 2. Grillo and DeVita by their own testimony substantially verified the oral and written statements of guilt they had previously given the police, and practically speaking contested only the matter of punishment. They contended, in mitigation, that the actual shooting was unintentional and accidental. The State vigorously urged the jury to impose the death penalty. Rosania in addition offered the defense that he had withdrawn from the robbery plan before the crime took place, but the testimony of his two confederates served to establish his participation up to the moment he left the park bench for the reason previously indicated. The trial judge instructed the jury that if they believed the contention that he had withdrawn before the holdup was consummated, he must be acquitted. Obviously from its verdict, the jury rejected the defense. As to all the defendants, the court very properly charged in accordance with our law that under the evidence the only possible verdicts were guilty of murder in the first degree, with or without recommendation, or acquittal, to be reached as to each defendant separately.
Grillo and DeVita appealed to this court and their convictions were affirmed. State v. Grillo, 11 N.J. 173 (1952). The United States Supreme Court denied certiorari. 345 U.S. 976, 73 S. Ct. 1123, 97 L. Ed. 1391 (1953). Rosania took no appeal and has sought no post-conviction relief of any kind until the present application.
In 1953 DeVita obtained a state writ of habeas corpus on a claim of constitutional defect in the form of the jury verdict as it applied to him. The trial court discharged the writ, In re DeVita, 27 N.J. Super. 101 (Law Div. 1953), and we affirmed on the opinion below. 13 N.J. 341 (1953). Certiorari was denied. DeVita v. State of New Jersey, 346 U.S. 923, 74 S. Ct. 309, 98 L. Ed. 416 (1954).
Shortly thereafter Grillo, and later DeVita also, moved for a new trial before the trial judge asserting that they had been "denied due process of law in that they were tried by a jury which could not have heard the case if the facts now known had been revealed at the time the jury was selected." There thus came into the case for the first time the federal constitutional question finally held by the federal court to require the setting aside of the death sentence verdicts. The basis of the claim was this: it had just been discovered that one member of the trial jury had himself been the victim of an armed street robbery several months before the instant crime; the fact was not disclosed on his voir dire examination but, although he was not asked the direct question and said he knew of no reason why he could not sit as a fair and impartial juror, he should have volunteered the information in view of express questions on the subject put to some talesmen both before and after his examination; and if this juror's prior experience had been known, the defense would not have accepted him, but would have exercised a peremptory challenge. The conclusion urged in effect was that at least the real possibility of bias must be imputed to an individual who had suffered a similar experience and consequently, where the sole question the jury had to decide was life or death and it had chosen the latter, there was such fundamental unfairness as to amount to denial of due process under the Fourteenth Amendment and to require a new trial. The trial judge found no violation of law and denied the motion. A majority of this court agreed and
there was an affirmance on the general basis that there was no charge of actual bias or prejudice and that the factual situation was not sufficient to warrant a presumption of either. 16 N.J. 103 (1954). Two justices dissented. The paramount importance of the punishment issue in the question before the court is further demonstrated by the statement in the final sentence of the dissenting opinion: "A life should not be taken by legal process unless every reasonable doubt is resolved in favor of the condemned, and unless the best judicial procedure has been 'rigidly and jealously enforced' * * *." (16 N.J., at p. 116). It should be noted that an additional basis of bias was urged for the first time on the appeal. The same juror had answered in the negative a question asking whether he knew "any of the State's officers or personnel." It was claimed this was knowingly false and so further indicated prejudice because the newspaper story of his holdup indicated ...