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State v. Athorn

Decided: January 24, 1966.

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
JAMES ATHORN, JR., DEFENDANT-RESPONDENT



For reversal -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For affirmance -- None. The opinion of the court was delivered by Proctor, J.

Proctor

This is an interlocutory appeal by the State from the trial court's order directing an interrogation of the jurors who had returned a verdict of guilty against the defendant. The Appellate Division granted the State's motion for leave to appeal, and while the appeal was pending we certified the case.

On September 28, 1964, a jury in the Essex County Court found the defendant, a Newark police officer, guilty of extortion and misconduct in office. About a month later, the court received notice from the prosecutor that one of the jurors alleged that the verdict had been improperly rendered. As a result, the trial judge summoned the juror, Samuel Molee, and questioned him in the presence of the defendant's attorney and the prosecutor.

Molee testified that the jury balloted three times, twice eleven to one and finally unanimously, to find the defendant guilty, Molee having been the only holdout. During the course of the deliberations, some of the jurors remarked, "cops take bribes," the foreman giving newspapers as the source of this knowledge. Molee further testified that one of the women jurors called him "stubborn" and several exclaimed, "'Oh, my God!' like they were looking to get home or something" when he persisted in his not-guilty vote. He also claimed that he was "tricked" into voting guilty by a juror who seemed to agree with him that the defendant was

innocent but who then cast his vote for guilty. Further, he said he was disturbed because the trial judge frequently called the defense counsel up to the side bar but never the assistant prosecutor. Finally, Molee asserted that he misunderstood the trial court's instruction that the jury must reach a unanimous verdict; he stated that at the time of the trial he had never heard of a "hung jury" but that had he been aware of that possibility he would never have changed his vote to guilty. However, Molee admitted that when the jury was polled he again voted to find the defendant guilty.

On the basis of the above testimony the trial court concluded that it would interrogate the other jurors concerning Molee's allegations. On the State's motion the order to that effect was stayed by the Appellate Division, and the propriety of the order is the subject of this appeal.

We do not believe that Molee's allegations, even if they were to be substantiated by the testimony of the other jurors, would be a sufficient basis on which the conviction could be set aside, and thus the trial court's order must be reversed. Calling back jurors for interrogation after they have been discharged is an extraordinary procedure which should be invoked only upon a strong showing that a litigant may have been harmed by jury misconduct.

If verdicts could be easily set aside as a result of an investigation into secret jury deliberations, disappointed litigants would be encouraged to tamper with jurors, to harass them and to employ fraudulent practices in an effort to induce them to repudiate their decisions. Moreover, an open invitation would be extended to any disgruntled juror who might choose to destroy a verdict to which he had previously assented. See, e.g., McDonald v. Pless, 238 U.S. 264, 35 S. Ct. 783, 59 L. Ed. 1300 (1915); Hutchinson v. Consumers Coal Co., 36 N.J.L. 24, 25-26 (Sup. Ct. 1872); State v. Gardner, 230 Or. 569, 371 P. 2 d 558 (Sup. Ct. 1962); People v. Van Camp, 356 Mich. 593, 97 N.W. 2 d 726 (Sup. Ct. 1959); Sanitary Dist. of Chicago v. Cullerton, 147 Ill. 385, 35 N.E. 723 (Sup. Ct. 1893).

The secrecy surrounding jury deliberations is necessary not only to prevent the unsettling of verdicts after they have been recorded, but also as an aid to the deliberative process itself. Each juror should be encouraged to state his thoughts freely, good or bad, so that they may be weighed by the other jurors. State v. LaFera, 42 N.J. 97, 106 (1964). "Freedom of debate might be stifled and independence of thought checked if jurors were made to feel that their arguments and ballots were to be freely published to the world." Clark v. United States, 289 U.S. 1, 13, 53 S. Ct. 465, 469, 77 L. Ed. 993, 999 (1932). Cf. R.R. 1:25A.

Thus, our courts and those of other jurisdictions have generally refused to accept from jurors, for the purpose of impeaching a verdict, any evidence of the discussion which they may have had among themselves while considering their verdict. See McDonald v. Pless, supra; Bragg v. King, 104 N.J.L. 4 (Sup. Ct. 1927); Queen v. Jennings, 93 N.J.L. 353 (Sup. Ct. 1919); Peters v. Fogarty, 55 N.J.L. 386 (Sup. Ct. 1893); Lindauer v. Teeter, 41 N.J.L. 255 (Sup. Ct. 1879); Hutchinson v. Consumers Coal Co., supra; Pulitzer v. Martin S. Ribsam & Sons Co., 19 N.J. Misc. 233, 18 A. 2 d 726 (Sup. Ct. 1941); Marconi v. MacElliott, 8 N.J. Misc. 69, 148 A. 392 (Sup. Ct. 1930); Davis v. United States, 47 F.2d 1071 (5 Cir. 1931); R. v. Thompson [1962] 1 All E. Rep., 65 (1961); 8 Wigmore, Evidence (McNaughton rev. 1961), §§ 2346 to 2349 (see cases collected in footnote 2 at pp. 682-690); McCormick, Evidence § 68 (1954). However, no inflexible rule can be laid down because cases do arise where "the plainest principles of justice" demand that a new trial should be directed upon a proper showing. Mattox v. United States, 146 U.S. 140, 148, 13 S. Ct. 50, 52, 36 L. Ed. 917, 920 (1892); United States v. Reid, 53 U.S. ...


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