Decided: June 6, 1966.
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JOHN ROBERTS, JR., DEFENDANT-APPELLANT
For reversal -- Chief Justice Weintraub and Justices Jacobs, Proctor, Hall and Schettino. For affirmance -- Justice Francis. Francis, J. (dissenting).
[47 NJ Page 287]
Defendant was indicted for the murder of Solomon Hutchins. The jury returned a verdict of manslaughter, and defendant appeals directly to us from the judgment of conviction. R.R. 1:2-1(c).
Hutchins and his wife ran a small grocery store on Prince Street in Newark. Defendant was one of several persons who on the day of the homicide played at cards with Hutchins in a room behind the store. Following a dispute between them, Hutchins ordered defendant to leave. Defendant did. Mrs. Hutchins testified it was then about 10:00 P.M.; that about 11:00 P.M. defendant returned to the store; that, hearing a commotion, she went to the front and saw her husband lying on the sidewalk with defendant striking down at her husband and her husband attempting to strike back with a wooden shovel handle. Hutchins died within a matter of minutes. He had been stabbed with an ice pick. There were four wounds, one in the left side of the chest to a depth of four inches, another in the right side of the lower abdomen to a depth of 5 1/4 inches, and two in the right side of the upper abdomen to a depth of about one inch.
The police arrived quickly and went with Mrs. Hutchins to search for defendant. Defendant was found at his home. He had injuries to his left hand, left elbow, and head. He explained to the police that he had fallen down a flight of stairs. He was removed to a hospital where it was found that the elbow was fractured. Upon his release from the hospital some 12 days later, he gave the police a written
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statement in which he said that Hutchins had attacked him with a club, that in defense he spun Hutchins to the ground, and stomped on him with his foot. The statement was thus wholly exculpatory, but it hurt defendant because of the obvious conflict with the undisputed fact that Hutchins was stabbed.
At the trial defendant testified that as he left the store, Hutchins suddenly belabored him with the shovel handle; that reaching for a knife he in fact did not have on him, he felt and drew an ice pick which he had found a week before and had forgotten about; that he did not believe he stabbed Hutchins; that on his way home, he discarded the weapon. It was not found.
On this appeal, defendant complains of the admission of the oral statement to the police concerning how he was injured and of the admission of the written statement referred to above. Defendant also charges the prosecutor with alleged improprieties. We find no substance in any of these points. On the record of the trial, the conviction is in all respects proper and the judgment should be affirmed.
Defendant, however, raises for the first time upon this appeal a charge of racial bias. Defendant is a Negro and so also was the deceased. Counsel for defendant sought to inquire on voir dire whether the jurors held any prejudice against Negroes. His approach was quite indirect; he explained that he was trying to probe the "subjective state" of the juror's mind. The stenographic record, as certified by the shorthand reporter, reads in part:
"THE COURT: I cannot understand what difference it would make if he had any social relationship with a Nigger, or if he lives within three blocks of a Negro. How can that show prejudice? I cannot see any sense in that.
MR. FRANZONI: Your Honor, whether or not he has prejudice against Negroes in general is a subject matter that may be in his own mind.
THE COURT: I understand that, but the question of whether he has ever been to a socal occasion with a Negro or how close he happens to live to a Negro, it seems to me has very little, if anything, to do with it." [47 NJ Page 289] The complaint revolves about the word "Nigger." That word appears nowhere else in the record. We asked the trial judge to certify whether the transcript is accurate and he replied that he is morally certain that he did not use that word.*fn1 There was no objection by counsel at the trial, or thereafter when he made a motion for a new trial. The record repels any suggestion of prejudice. In fact, no other juror was present during the interrogation in question, and the juror then being examined was not seated in the case. The trial itself was completely fair. Indeed the trial court was most patient with the defense, which from time to time was unable or unwilling to abide by its rulings. The prosecution, too, handled the case commendably. We note, in support of that observation, that when defense counsel undertook to bring out defendant's criminal record and was about to elicit items which the State could not have introduced against defendant, the prosecutor intervened to protect defendant and the trial court too assisted the defense in that regard. The verdict itself was eminently fair; the evidence would have justified a finding that defendant went home to obtain the ice pick and returned to the store to renew the dispute with deceased, from which finding a higher degree of criminal culpability could readily emerge.
[47 NJ Page 290]
Although we are thus satisfied the record contains not a trace of prejudice, defendant claims he was so cut by the word that he despaired of a fair trial and lost his capacity to testify with conviction and effect.
As we have said, this claim was first advanced by an affidavit filed with our Court, executed some ten months after the trial. Obviously a claim of that kind can be advanced only at the trial level, and never by ex parte affidavit, for the State has the right of cross-examination. The affidavit being no part of the record before us, it should be ignored and defendant left to some further proceeding if he should wish to pursue his allegation.
We would take that course except for our doubt that the allegation could be tried with real satisfaction. We understand the stenographer stands by her notes, and we are certain of the integrity of the trial court's certification. The question then would be whether the stenographer's record reflects an unconscious slip of the judge's tongue or the error of the stenographer in hearing or in recording.*fn2 It would be awkward to resolve an issue of that kind. And if the stenographer's version were upheld, the trier of the facts would then have to deal with defendant's assertion of his alleged emotional reaction to the word. The record of defendant's testimony does not reflect the despair he now asserts. And it seems incredible that, if he was so deeply moved, he would have said nothing to his counsel at that time. His silence, as well as the silence of counsel, who was at that very moment
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searching for unconscious prejudice in a prospective juror, is difficult to comprehend. But we are in an area of great current sensitivity, and no matter how the courts deal with the issue, there may remain a doubt that the issue was handled objectively. For this reason, and although we are satisfied justice was done, we conclude, with much reluctance, that the image of justice would be better served by a new trial.
The judgment is reversed and the matter remanded for a new trial.
FRANCIS, J. (dissenting). Roberts was given a scrupulously fair trial. The proof of his guilt was clearly adequate. In fact, as the majority note, a verdict of a higher degree of criminal culpability could well have emerged.
The record fails to reveal the slightest indication of bias or prejudice or unfairness on the part of the presiding judge, in his conduct of the trial, or treatment of witnesses, including the defendant.*fn1 I believe, as I am certain the trial judge does, [47 NJ Page 292] that justice should be administered equally to all persons regardless of race, creed or color. In my judgment in the guilt or innocence determining process the defendant was given the [47 NJ Page 293] benefit of that principle in full measure by both court and jury. For my colleagues to reverse the resulting conviction
[47 NJ Page 294]
when they find no error, is not to achieve equal justice for the defendant; it is to impose unequal justice on the trial judge.
For these reasons I would affirm the conviction.