For affirmance -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall and Haneman. For reversal -- None. The opinion of the court was delivered by Francis, J.
Defendant Manley was indicted for murder. At his trial the State sought a first degree murder verdict with a life imprisonment recommendation. The jury found him guilty of murder in the second degree. On this direct appeal under former R.R. 1:2-1(c) the validity of the conviction is challenged on two grounds: (1) Defendant's confession was erroneously admitted in evidence; and (2) the trial court erred in refusing to allow defense counsel to put certain questions to prospective jurors on the voir dire examination. For reasons to be stated we find no reversible error on either ground.
Admissibility of the Confession
The charge here arose out of the senseless beating of one John Schlagenhaft, a derelict, on June 16, 1966, at about 9 P.M. in a city park in Elizabeth, N.J. Four young men participated, Manley, Zelichowski, Heim and Bigler. Manley was on parole at the time. He had been convicted in 1963 of atrocious assault and battery. At the trial there was a dispute as to whether there were two distinct attacks, the second one occurring a short time after the first and involving only two of the individuals, Heim and Bigler. The police came upon Schlagenhaft at 12:30 P.M. on June 17, about 15 hours later. He was still alive and lying about 100 feet from the place of the initial onslaught. He was nude, except for a tie, shirt and socks and his body bore cigarette burns as well as evidence of a severe beating. There was no testimony, however, that the group of four had stripped Schlagenhaft or inflicted the cigarette burns on him. He was then taken to the hospital where he died as the result of the injuries and an associated pulmonary edema.
Manley was taken into custody as a suspect around 8:30 P.M. on June 30, 1966 and brought to the Elizabeth Police Station for questioning. The trial court found that he was
given the Miranda warnings immediately. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2 d 694 (1966). According to the detectives Manley said he understood the advice he had been given and did not wish to have a lawyer. Beginning at approximately 9 P.M. he was interrogated for about 40 minutes, during which time he admitted being in the park with the three other men, but he denied knowledge of the criminal incident. At the end of that questioning, he was left in the main room of the detective bureau. Two detectives returned around 1:45 A.M. After one of them repeated the warnings, Manley was told that Heim had admitted involvement in the beating of Schlagenhaft and had implicated him. Upon being shown the written confession, Manley orally admitted having participated in the attack on Schlagenhaft.*fn1 A stenographer was summoned and about 20 minutes later the taking of a written statement began.
The detective in charge of taking the written statement testified that he gave Manley a mimeographed sheet containing the warnings which Manley read and said he understood. Another copy was given to the stenographer. The statement was then taken and upon completion was signed by him. The statement also contained a waiver of his Miranda rights which he read before any of the inculpatory matter was typed.
At the trial Manley did not charge that he was struck or beaten or abused in any way before inculpating himself. His claim was that he was not advised of his Miranda rights until after his oral statement had been given, and just before the written confession began. The trial court found that
the officers had met the requirements of Miranda from the beginning of the questioning and that the confession was voluntarily and understandingly given. Review of the testimony satisfies us beyond a reasonable doubt that the finding was correct. A significant factor in that connection is that the Miranda decision, with its dramatic impact on police confession-taking techniques, had come down from the United States Supreme Court just two weeks before Manley's confession was taken. Each of the officers involved in the interrogation said that he had in his possession at the time a mimeographed outline of the required warnings. Their obvious awareness of the Miranda rule gives their testimony an added ring of truth and we accept it as did the trial court.
The Voir Dire Examination of Jurors
Although the indictment was for murder, the State did not demand the death penalty. Yet the interrogation of prospective jurors was excessively prolix and eight days passed before the jury box was filled. The situation was not unusual. Records that have come to us on appeal in recent times, in criminal cases particularly, reveal a trial-bar practice of voir dire examination of jurors at inordinate length and on improper subjects. The prevalence of the practice, with its unnecessary trial delays, and its adverse effect upon already heavily burdened trial calendars, has moved us in this case to draw some restrictive guidelines for future control of the jury-drawing process. Of course in doing so we shall deal with the specific objection to the limitation imposed by the trial court upon defense counsel's questioning.
As has been noted above, Manley had been convicted previously of atrocious assault and battery arising out of beating a young woman. On the first day of the voir dire defense counsel asked questions centering about the previous conviction of crime. A typical question follows:
"Q. If during the course of this trial there appears in evidence or it becomes evident to you that this defendant has once before been convicted of a crime, in fact, atrocious assault and battery, and that this element is admitted under the Judge's instructions for the purpose -- for a limited purpose, would you be able to follow the Judge's instructions and use it only for that limited purpose?"
Two prospective jurors who were asked the question (without objection) were accepted. At the end of that day, the trial judge announced he would not allow further questions of the same kind unless counsel would indicate an intention to put defendant on the witness stand in his defense. A long colloquy ensued in which the reason for the ruling became clear. The judge pointed out that if the defendant elected not to testify, the fact of his previous criminal conviction would not become evidential in the case. So, if the jurors were informed before their selection of the 1963 atrocious assault and battery and thereafter defendant did not take the stand, they would have in their minds facts probably prejudicial to the defendant. And he indicated concern as to whether the jurors would eliminate such facts from their minds while deliberating upon their verdict -- even if he instructed them not to consider any such voir dire questions or the facts contained therein. He was also troubled that in spite of his instructions to be given at the end of the case, the jurors would wonder why, after Manley had admitted the previous conviction in the preliminary questioning, he had not taken the stand in defense of or to deny the presently charged similar offense. The judge felt that since the fact of previous conviction would not get before the jury if defendant did not testify, defendant should not be allowed to endanger himself and his case by volunteering the damaging data. In short, he considered himself obliged to protect defendant against the probable harmful consequences of his own mistake. During the discussion defense counsel's position was that he could not say whether defendant would testify, no decision having been made on the subject. Consequently the judge ruled over objection that he would not
permit any further questions to prospective jurors which referred to defendant's previous atrocious assault and battery conviction.
In addition the judge felt he had to eliminate from the case the already existing possibility of prejudice stemming from defendant's acceptance of the two jurors who had been informed of the previous criminal conviction. Accordingly he excused them and instructed counsel to make a fresh start the next morning. This was done and ultimately the box was filled with acceptable jurors who had not been informed of the defendant's conviction.
As it turned out, defendant did take the stand in his defense at which time the previous conviction of atrocious assault and battery was introduced by his attorney on direct examination. At the conclusion of the case, the court in its charge dealt with the matter in classic fashion, advising the jury that such evidence was admitted only on defendant's credibility, and that it was not to be and could not be considered as evidence of guilt of the crime for which he was being tried. It is conceded that the charge furnished the proper advice and instruction to the jury on the matter.
On this appeal defendant claims the trial court abused its discretion in refusing to allow him to inform prospective jurors of defendant's previous criminal conviction and to ascertain from them whether they could and would follow and apply the court's instruction that such evidence was admitted for a limited purpose and should be used by the jury only for that purpose. He claims the ruling denied him a fair trial because of the prejudicial impact that evidence of the similar prior conviction was liable to have on the minds of the jurors when determining guilt. In his brief he concedes that a risk was being taken in putting the questions if he did not take the witness stand. He asserts he was prepared to take the risk and since he was the only one who could possibly be hurt by the inquiry, he should have been allowed to pursue it. He maintains also that before making a decision to testify in defense, he was entitled to
satisfy himself by a probing interrogation that jurors who were accepted would follow the court's direction as to the only proper evidentiary force of his previous conviction.
Obviously, if a defendant does not testify, previous conviction of crime is not admissible to attack his credibility. Compare, People v. Sanchez, 35 Cal. 2 d 522, 219 P. 2 d 913, (1950). In this event no charge of error could be predicated upon a refusal to allow defendant to interrogate jurors about such conviction. If he is allowed to admit a previous conviction of crime on voir dire questioning and then he does not testify, he incurs an unnecessary and perhaps substantial risk of prejudice to his defense. Consequently we agree with the trial court that if a defendant does not testify after informing the jurors on the voir dire of his previous conviction of a similar crime, he may have exposed himself to a greater risk of prejudice than would normally follow a failure to testify. Psychologically it is dangerous to assume that under ordinary circumstances jurors do not draw an adverse inference on the subject of guilt if testimony directly inculpating a defendant stands uncontradicted when the case is submitted to them for decision. It is even more dangerous to assume that this inference will not be aggravated if, during the process of selecting the jury, the defendant informs the prospective jurors that he has a criminal record. Whether he should be allowed to do this, without stating at least a presently existing intention to testify, is a matter which in our judgment is committed to the discretion of the trial judge. See State v. Sullivan, 43 N.J. 209 (1964); N.J.S. 2 A:78-4; R.R. 4:48-1. Defendant recognized this for he suggests that the issue for determination is whether under the circumstances present the court abused its discretion in limiting the questioning of the prospective jurors in the manner described.
Research has disclosed no case in New Jersey dealing with the propriety of voir dire interrogation with respect to a juror's willingness or ability to use evidence of the defendant's previous conviction of crime only in evaluating his
credibility. Other jurisdictions have considered the problem. For example, in People v. Lexow, 23 Ill. 2 d 541, 179 N.E. 2 d 683 (1962) this question was asked:
"If, during the course of this trial, sir, you were to learn that these defendants have been convicted of a felony, would that fact start you off with a feeling of prejudice to the extent that you might feel that because they were guilty once before they would have to be guilty in this case?"
"I don't know how to answer the question."
The trial court declared the question improper and instructed the jury to disregard it. The ruling was sustained on appeal.
In People v. Louzon, 338 Mich. 146, 61 N.W. 2 d 52, 57 (1953) the questions were:
"If, in the course of this trial it were to develop that any one or all of these defendants had been convicted of former offenses, would that fact prejudice you against them in any degree?"
"Do you feel that you can determine the guilt or innocence of these defendants on a basis solely of facts presented here pertaining to this case only, and be entirely uninfluenced by any evidence of former police records?"
Their exclusion was upheld primarily on the ground that the presentations failed to recognize that if the defendants testified, the jurors could consider previous ...