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State v. Morales

Decided: October 22, 1971.


Goldmann, Collester and Mintz. The opinion of the court was delivered by Goldmann, P.J.A.D.


Defendant, together with Hector Diaz and Francisco D. Marrero, were indicted for armed robbery and tried together. The trial judge dismissed the charges against Marrero, declared a mistrial as to Diaz, and the jury found defendant guilty as charged. The judge thereafter sentenced defendant to serve consecutive State Prison terms of 10-15 years for robbery and 4-5 years for being armed. This appeal ensued.

Defendant first claims error in the method used in selecting the jury, particularly addressing himself to the omnibus questions asked by the judge. We find no error.

At the opening of the trial the judge presented the defendants, witnesses and lawyers to the jury panel. The trial judge asked detailed questions as each juror in the first panel took his place in the box. After the first peremptory challenge the judge asked each new prospective juror whether he had heard the detailed questions earlier propounded, and when the answer was in the affirmative, the judge asked, "Is there any information you want to give us now?" Where there was no response, the juror was seated. The second panel was selected in a like manner, although defense counsel objected to the manner of questioning. When the third panel was called the judge again presented to that panel all defendants, witnesses and lawyers. He also asked if anyone on the panel was related to a member of any law enforcement agency; whether anyone on the panel or member of his family or close relation had been convicted of a crime; whether there was any reason why he could not serve as a juror and render a verdict according to the evidence and the law, the charge being robbery while armed, and whether he felt he could sit and act as an impartial juror.

During the voir dire the following question was put to the third panel by the judge: "Luie [ sic ] Morales is represented by Kalman Geist. Are you clients of his? Or, do you know him?" There was no response. Later it developed that juror Steinforth was biased against defense counsel. He was excused by the court, defense counsel stating, "I don't think, if I had conducted the voir dire instead of the Court that I would have illicited [ sic ] the information either." After Steinforth was excused counsel stipulated that he accepted the 11-member jury. However, after the jury had retired to discuss its verdict, defense counsel moved for a mistrial on the ground that there was not a 12-member jury. The motion was denied.

Defendant claims error in the voir dire because some of the jurors were not asked a single question personally after they were seated in the jury box. Although at one time the general rule was that examination of jurors on voir dire should be made of each juror individually and not as a group, Springdale Park v. Andriotis , 30 N.J. Super. 257, 263 (App. Div. 1954), the adoption of R. 1:8-3(a) in the 1969 revision of the rules significantly changed the former practice under R.R. 3:7-2(b) and 4:48-1, respectively dealing with the examination of jurors in criminal and civil actions.

R. 1:8-3(a) provides, in pertinent part:

For the purpose of determining whether a challenge should be interposed, the court shall interrogate the prospective jurors in the box after the required number are drawn without placing them under oath. The parties or their attorneys may supplement the court's interrogation in its discretion. * * *

The omnibus questions put by the court in this non-capital case were allowed under that rule, whose purpose is to eliminate a time-consuming voir dire by giving the trial judge a greater responsibility for questioning. State v. Manley , 54 N.J. 259, 282 (1969). The court there said that not only would the preliminary questioning by the neutral judge

be more likely to produce a truly impartial jury but, in addition, it would avoid the unreasonable expanse of protracted jury examination and serve the interest of jurors by conserving their time and energy and eliminating unwarranted intrusion into their personal affairs. The interest of the public, the courts, counsel and jurors would be served. The court added that if the purpose of R. 1:8-3(a) was to be accomplished, the trial judge would have to exercise considerable restraint over any supplementary questioning by counsel.

The burden is on the complaining party to establish that the mode of conducting a voir dire prejudiced him. Springdale Park v. Andriotis , above, 30 N.J. Super. at 265. ...

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