For reversal -- Chief Justice Weintraub, and Justices Proctor, Hall, Schettino and Haneman. For affirmance -- None. The opinion of the court was delivered by Weintraub, C.J.
[42 NJ Page 99] Defendants were convicted of a conspiracy to rig bids on a public project. They appealed. Before
the appeal was argued, defendants obtained a remand to permit them to apply to the trial court for a new trial on the ground that a juror was biased and prejudged the case. After a hearing, the trial court ordered a new trial. The State was granted leave to appeal. We certified both that appeal and the appeals from the judgments of conviction before argument in the Appellate Division.
We think it unnecessary to decide the appeal from the order for a new trial since we are satisfied defendants should prevail upon their main appeal from the judgments of conviction for reasons given later in this opinion. Nonetheless, we feel we should express some views upon questions related to the motion for a new trial.
Defendants say the order granting a new trial is not reviewable. They cite State v. Haines, 20 N.J. 438, 447 (1956), where it was noted in an incidental discussion that the State may not appeal from a trial court's order for a new trial. In that connection the Court referred to the Report of the Committee on Appeals by the State in Criminal Cases, March 1, 1955, which recommended that an appeal be authorized, saying (at p. 9):
"The most frequent grounds for the granting of a new trial or arresting judgment by the trial court are either (a) that the verdict was against the weight of the evidence; or (b) that serious legal error affected the result. Common experience has shown that if the new trial be granted on the first ground the natural consequence is the subsequent voluntary dismissal of the indictment by the prosecutor. No injustice would come to a defendant if the State, in addition to considering the practicality of a new trial, should have the alternative of appealing the action of the trial court. * * *"
Defendants stress that we did not amend our rules to implement that recommendation, and they add that the report of
our Committee on Criminal Procedure, May 11, 1961, declined to renew the 1955 proposal, saying (at p. 25):
"The Committee does not renew the recommendation made in 1955 that the State be allowed to appeal from an order of the trial court granting a new trial. In the majority of instances such orders are based upon an evaluation of the evidence which is peculiarly for the trial court's determination. * * *"
On the other hand, the State points to State v. Levitt, 36 N.J. 266 (1961), and State v. Rosania, 33 N.J. 267 (1960), in both of which the State obtained a review of an order of the trial court vacating a judgment of conviction on a post-trial charge that a juror was biased. In neither case, however, was the issue of appealability raised, and hence we are now called upon for the first time to decide whether such an order may be reviewed notwithstanding the general proposition that the State may not appeal from the granting of a motion for a new trial.
The answer is found in the history of the subject. Although the State could not appeal from an order granting a conventional motion for a new trial, it could appeal from a judgment in a habeas corpus proceeding. The reason was that habeas corpus was regarded as a separate civil proceeding rather than a step in the criminal cause and hence the State could seek a review as in any other civil matter. State v. Daniels, 38 N.J. 242, 246 (1962); State v. Court of Common Pleas of the County of Mercer, 1 N.J. 14 (1948); State v. Rivers, 16 N.J. Super. 159 (App. Div. 1951).
This distinction between a motion for a new trial and a proceeding in habeas corpus still exists, although somewhat obscured by recent events. The reach of habeas corpus has been expanded, sundry denials of fundamental fairness being deemed to be "jurisdictional" and hence remediable under that ancient writ. See State v. Cynkowski, 10 N.J. 571, 576 (1952). At the same time there has developed an impatience with procedural niceties, so that if sufficient reason appears in the moving papers, the grievance is aired whether the
application is called a motion for a new trial or a petition for a writ of habeas corpus. But in thus cutting through procedural knots at the trial level, there is no intent to deprive the State of its existing right of review, or to suggest that the question of appealability shall be determined by the vehicle used to bring the issue into court. Rather the State's right to appeal depends upon the nature of the issue and its relation to the preexisting right to review.
We recently adopted R.R. 3:10A to prescribe a single all-embracing procedure for post-conviction review and in doing so we overlooked the question as to the scope of the State's right of appeal. We provided for the use of a petition, and directed it to be filed in the original criminal cause, R.R. 3:10A-1 and 7, in part to the end that the entire history of a defendant's efforts to undo his conviction will be immediately known. R.R. 3:10A-9 provides that the State may file an answer or move to dismiss. The trial court's disposition of the petition is called a "judgment," and R.R. 3:10A-12 says "Such judgment shall constitute a final judgment in a criminal cause." In so providing we were thinking of how a defendant's appeal should be prosecuted, and to that end the judgment was equated with a final judgment. But the question whether the State could appeal did not occur to us, and thus no effort was made to delineate or deal with the cases in which that right existed.
Obviously the State's right to appeal should not hinge upon whether the proceeding is given one tag rather than another. For example, in State v. Grillo, 16 N.J. 103 (1954), a companion case to Rosania, supra (33 N.J. 267), Grillo employed a motion for a new trial to assert his claim that he was denied due process because of the alleged bias of a juror. He was denied relief on the merits. Later Grillo advanced the same charge in the federal courts in a proceeding for a writ of habeas corpus. He lost at the trial level but prevailed on appeal. United States v. McCorkle, 248 F.2d 1 (3 Cir. 1957), cert. denied 355 U.S. 873, 78 S. Ct. 121, 2 L. Ed. 2 d 77 (1957). There seems to be no doubt that, had Grillo succeeded
in the United States District Court, the State could have appealed. See Knewel v. Egan, 268 U.S. 442, 45 S. Ct. 522, 69 L. Ed. 1036 (1925). It would hardly make sense to have the State's right to appellate review in such cases depend upon the procedural route which is employed to raise an issue rather than upon the nature and significance of that issue.
It seems to us that the correct rule is this: the State may not appeal from a trial court's order for a new trial based upon the record of the trial itself (including newly discovered evidence which must be weighed in the light of the existing record). On the other hand, if the attack is collateral in nature and involves issues not litigated in the main case, the order should be reviewable on the State's behalf. The distinction of course is the one discussed above, between the traditional motion for a new trial and a proceeding for relief based upon lack of jurisdiction or upon fundamental unfairness remediable under the expanded view of habeas corpus.
This distinction appears to prevail in the federal scene. In United States v. Williamson, 255 F.2d 512, 515 (5 Cir. 1958), cert. denied 358 U.S. 941, 79 S. Ct. 348, 3 L. Ed. 2 d 349 (1959), it was held that the Government may appeal from an order under 28 U.S.C.A. § 2255 which authorizes a "motion" for relief upon such collateral grounds, the court pointing out that the proceeding under that section "is, like habeas corpus which it was enacted to simplify and largely supplant, a civil matter rather than criminal although it necessarily deals with criminal convictions." To the same effect is United States v. Kelly, 269 F.2d 448, 451 (10 Cir. 1959).
Here defendants assailed the judgment upon a basis beyond the record of the trial itself. They alleged they were denied due process of law because a juror was biased, a charge within the enlarged view of habeas corpus. The order vacating the judgments of conviction was therefore appealable.
There is the further question as to whether an order granting a new trial should be treated as interlocutory or final. Under our practice, the significant difference is that
leave to appeal must be had if the order is interlocutory and leave must be sought within a shorter period than is provided for an appeal as of right from a final judgment. In this connection we should discuss State v. Daniels, supra (38 N.J. 242). There defendant was sentenced upon a plea of non vult to an indictment for murder. More than a year later he sought to be relieved of his plea upon what he labeled a petition for a writ of habeas corpus, which however was molded into a motion in the original cause to withdraw his plea under R.R. 3:7-10(a). He prevailed and the State appealed. Defendant did not question the State's right to seek a review but contended the order was interlocutory and hence leave to appeal should have been sought under R.R. 1:2-4(c). The State countered that the proceeding should be treated as one in habeas corpus, as defendant had initially called it, and hence the order should be deemed to be a final judgment in a civil matter, appealable by the State as of right. We rejected that view but nonetheless granted the State leave to appeal from the order as an interlocutory one.
Analytically an order vacating the sentence and plea could be final or interlocutory depending upon the basis for the relief, i.e., whether (1) on a claim that the defendant was denied due process by the misconduct of others or (2) upon grounds addressed solely to the discretion of the court. The expanded writ of habeas corpus could include the first type of ground and an order based upon it would be final as in a habeas corpus proceeding. But if the application is addressed solely to the discretion of the court, an order granting relief would be interlocutory as that concept is usually understood. Nothing, however, is gained by maintaining a distinction of that kind. The truth is that whenever a judgment in habeas corpus leads to a new trial, it is interlocutory in its practical effect, being then but an intermediate step which serves to renew the criminal controversy. This being so, it is appropriate to say all trial court orders leading to a new trial, if they are reviewable, shall be deemed interlocutory for the purpose of appellate procedure. Not only will procedural
quarrels be avoided but also the ultimate disposition of the criminal charge will be expedited by limiting appeals to situations in which an appellate court first finds sufficient reason for review. We add, not to support this approach but rather as an historical coincidence, that under our former judicial system, the State could review a judgment in habeas corpus by certiorari, the allowance of which was discretionary. See State v. Court of Common Pleas of the County of Mercer, supra (1 N.J. 14).
The defense launched a post-conviction investigation of the jury without leave of court. The State charges a violation of R.R. 1:25A and contends the product of that investigation should be suppressed as a necessary sanction to discourage such conduct. R.R. 1:25A provides:
"No attorney shall himself or through any investigator or other person acting for him interview, examine or question any juror with respect to the verdict or deliberations of the jury in any action except on leave of court granted upon good cause shown."
Defendants concede that upon nothing more than a sense of shock induced by the verdict of guilty, they engaged a private investigator named Klay to search for something to impeach the verdict. There is no doubt that the investigation was intended to probe the verdict and the deliberations of the jury. Klay was instructed by counsel not to interview a juror because of R.R. 1:25A and none was interviewed, but Klay and as many as 12 or 13 others retained by him moved in and out of the affairs of the jurors, contacting relatives, friends, and associates under a multitude of guises, in the hope that something useful would emerge. This extraordinary investigation was conducted from January to December 1962, at a cost ...