Lynch, Ackerman and Larner. The opinion of the court was delivered by Larner, J.A.D.
Defendant was convicted on both counts of an indictment charging him with possession of a controlled dangerous substance (N.J.S.A. 24:21-20(a)(1)) and distribution of same (N.J.S.A. 24:21-19(a)(1)). The trial judge imposed an 18-month sentence to the Mercer County Correction Center on each count, suspended execution of the same, and imposed a probation term and a fine of $500.
The major issue on this appeal is whether the trial judge committed reversible error in his refusal to pose certain questions to prospective jurors on the voir dire. The asserted purpose of the supplemental questions framed by defendant's
counsel was to elicit possible racial prejudice because defendant was black and the State's major witness, an undercover agent, was white.
The trial judge examined the jurors on voir dire in accordance with R. 1:8-3 and State v. Manley , 54 N.J. 259 (1969). During this process he stressed to the panel that the purpose of the voir dire was to "get a jury that has no predispositions, have no prejudices, either against the person of the defendant himself whom you see in this courtroom or because of the nature of the charge," in order to achieve a verdict based upon the evidence and "not because of any passion, prejudice, or sympathy."
Counsel for defendant requested the judge to supplement his inquiry by asking the jurors the following questions:
Would any among you give more credence to testimony of a white person than you would the testimony of a black person?
Would you give the testimony of a police officer more credence, more reliability than you would that of a black person?
The judge denied the request, stating that he had substantially covered the principles involved in the case and was not called upon to adopt the form of the questions submitted by counsel.
The thrust of the appellate argument is that the judge's failure to pose the questions as framed or in another form specifically attuned to ferret out possible racial prejudice was a violation of defendant's right to due process under the Fourteenth Amendment in view of the United States Supreme Court's opinion in Ham v. South Carolina , 409 U.S. 524, 93 S. Ct. 848, 35 L. Ed. 2d 46 (1973). Alternatively, he argues that the judge's refusal to question the jurors as requested was an abuse of discretion constituting ...