For affirmance -- Chief Justice Hughes, Justices Mountain, Sullivan, Pashman, Clifford and Schreiber and Judge Conford. For reversal -- None. The opinion of the Court was delivered by Hughes, C.J. Sullivan, J. (concurring in result). Justice Schreiber joins in this opinion. Clifford, J., and Conford, P.J.A.D., Temporarily Assigned, concurring. Sullivan, Clifford and Schreiber, J.J., and Conford, P.J.A.D., concurring in the result. Pashman, J., concurring in the result and dissenting. Pashman, J. (concurring in result and dissenting).
Having been tried jointly to a jury, defendants were convicted of armed robbery (N.J.S.A. 2A:141-1, N.J.S.A. 2A:151-5) of a store proprietor and a customer present in the store at the time. The Appellate Division reversed the convictions in separate unreported decisions, and we granted certification on petitions of the State. 63 N.J. 425 and 502 (1973).*fn1
The appeals were argued in due course but we delayed decision in view of the pendency of a somewhat comparable case in which the United States Supreme Court issued its opinion on June 23, 1975. (United States v. Hale, 422 U.S. 171, 95 S. Ct. 2133, 45 L. Ed. 2d 99). Counsel were invited to file supplemental briefs bearing on the significance (or otherwise) of Hale, and the appeals were then reargued.
The facts here are these: at the trial Deatore defended on the basis of alibi, asserting that at the time of the crime he was in the company of a woman in a motel room in the
area. This evidence was presented through his own testimony and that of the alleged female companion. Mallon neither took the stand nor offered evidence in his defense. The proof of guilt of both defendants was overwhelming not only through identification by the victims but also by reason of much incriminating evidence, especially checks and credit and personal cards of the victims, found on a search, pursuant to a warrant, of the motel rooms occupied by defendants.
The Appellate Division reversed Deatore's conviction because the trial judge permitted the prosecution to ask him on cross-examination, over objection, a series of questions bearing on his failure to make any exculpatory statement to the police after he was arrested. Mallon's conviction was reversed because the court felt that "the nature of the error was such as to affect and prejudice Mallon as well as Deatore in the light of surrounding circumstances," although this ground had not been urged in Mallon's brief on appeal.
In its opinion in Deatore's case the Appellate Division discussed another issue. After the jury box had been filled the judge had asked the prospective jurors whether they knew counsel, the defendants or any of the State's proposed witnesses. One answered that she knew the customer-victim of the holdup "personally and business." The judge then inquired whether, in view of this acquaintanceship, she could "render a verdict that would be free of any partiality or any prejudice * * *." She replied that she could. At the conclusion of the court's voir dire examination*fn2 and before any peremptory challenges under R. 1:8-3(d) were exercised,*fn3 counsel for Deatore, at side bar, moved to dismiss the juror
for cause. When this was refused, he asked leave to examine her on the extent of her relationship with the victim, knowledge of the crime committed against him and the like, which request was also summarily denied. Counsel then exercised a peremptory challenge and excused the juror. The matter of possible bias came up again during a voir dire examination by the court after all defense peremptory challenges had been exhausted. Deatore's attorney suggested the potential partiality of a juror who mentioned two relatives by marriage employed as correction officers in a Pennsylvania state prison. He asked for an additional peremptory challenge by reason of the claimed erroneous denial of the challenge of the earlier juror for cause. This was likewise refused. Mallon's counsel joined in each of these motions.
Having in mind the basic right of every defendant to a fair and impartial trial, we have no doubt that the trial court committed fundamental error in its refusal to conduct or permit a further examination of the first juror in the circumstances, which error in itself requires reversal of the judgments of conviction of both defendants and remand for a new trial, and so affirmance of the Appellate Division in both cases (the point was not mentioned in the Mallon opinion although it was the principal ground of appeal urged). We adopt the language of the Appellate Division in Deatore spelling out the reason:
Once it was disclosed by [the juror] that she was acquainted with one of the robbery victims, it became the duty of the trial judge to himself explore or to permit counsel to explore with the juror the nature and extent of his acquaintance with the victim. Without such information, neither counsel nor the court could make an intelligent appraisal as to the likelihood of the existence of any bias, prejudice or partiality in favor of the State or in favor of the credibility of the victim. State v. Jackson, 43 N.J. 148, 157-161 (1964), cert. den., 379 U.S. 982 [85 S. Ct. 690, 13 L. Ed. 2d 572] (1965). Had such inquiry been made and revealed a close relationship, it is not enough that the juror disclaimed any partiality for, as the court observed in Jackson, sincere as the disclaimer may be "it runs counter to human nature," Id., at page 160. * * *
Jurors "must be [carefully] selected with an eye toward[s] their ability to determine the controverted issues fairly and impartially;
. . . [and] the trial court should see to it that the jury is as nearly impartial 'as the lot of humanity will admit.'" Jackson, at pages 157-158. Likely prejudice to the right of this defendant to a fair and impartial trial inhered in the failure of the trial court to heed this elementary principle. Wright v. Bernstein, 23 N.J. 284 (1957).
The sufficiency of a stated disclaimer of any partiality in circumstances such as here involved would not only seem to run "'counter to human nature'" as above, but to fly "in the face of the plain reality of the courtroom." Cf. State v. Miller, 67 N.J. 229, 245 (1975) (Clifford, J., concurring and dissenting in part). See also Annotation, "Social or business relationship between proposed juror and nonparty witness affecting former's qualification as juror," 11 A.L.R. 3d 859 (1967).
We add that the obvious and practical way to handle the situation of a prospective juror having connections with a party or witness which might possibly affect impartiality is to excuse the juror by consent at the outset, with that course suggested by the judge if counsel do not propose it. And if that arrangement is rejected, the trial judge should proceed with the supplemental interrogation above mentioned, or permit counsel to do so in his discretion, to test the legitimacy or necessity of excusal for cause.
Although both cases could be disposed of on the basis of this error, we note the vigorous contention of the State that its cross-examination of Deatore was proper and that the Appellate Division was wrong in reversing his conviction on that ground. Since the point raised is of general importance, is subject (as we shall note later) to a remarkable variance in judicial views, and should be settled so far as New Jersey courts are concerned, we will decide it on the merits; this, even though it might be said that the evidence of guilt was so strong that any trial error in this regard was harmless beyond a reasonable doubt. We should further say that we disagree with the Appellate Division's holding that the asserted error in the questioning of Deatore necessarily "rubbed
off" on Mallon and prejudiced him as well so as to require the reversal of his conviction on that ground. Our opposite view is based upon the overwhelming evidence of guilt on the part of Mallon, apart from and irrespective of silence or other conduct on the part of Deatore, rendering any possible effect on Mallon of the State's challenge of Deatore's silence, harmless error beyond a reasonable doubt. Compare State v. Davis, 67 N.J. 222, 228 (1975) with State v. Macon, 57 N.J. 325, 335-41 (1971). In this respect we distinguish the exposure of both defendants equally to prejudice resulting from the failure to probe the qualification of the first challenged juror to sit in impartial judgment.
As indicated, the questions involved here related to the matter of Deatore's silence and failure to voice exculpatory information to the police at or about the time of his arrest. These questions came in the course of cross-examination, after he had testified on direct that he was elsewhere at the time of the crime. He was asked whether he had made any statements to such effect to the police when he was arrested and later when he learned of the specific charge against him. His reply was that the only thing he remembered saying was that he wanted a receipt for the money taken by the police from his person. He denied that he told the police he had nothing to say, and the interrogation concluded with the prosecutor asking whether it was not so that he had refused to make any statement.*fn4 The answer was: "Nobody asked me." It may be added that while there was testimony by one of the arresting officers that "defendant was read his rights" at police headquarters (which we interpret to mean that he was given the Miranda warning; Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966)), there was no evidence that he was questioned at all. No rebuttal testimony was offered by the State with respect to the line of interrogation outlined above, and no mention was
made of it during the balance of the trial either in the State's summation or otherwise.
The State takes the position that the purpose of its trial questioning was to elicit whether Deatore had an opportunity to assert his alibi defense at or about the time of arrest and, if so, to bring to the jury's attention that he had not asserted it until his testimony at the trial, which would have the effect of impeaching that testimony. The reasoning is, of course, that an innocent man would not have withheld such an exculpatory story prior to trial, but would have asserted it to someone in authority at the earliest opportunity to avoid arrest, indictment and trial; and that, therefore, the natural inference would follow that, unless a rational explanation for the failure to make such disclosure could be presented, the later exculpatory testimony is untrue.
Here the State also suggests that its cross-examination did not go to the full length of asking Deatore whether he had ever told anyone of his alibi claim prior to trial, because it developed that since no one asked him for a statement, he had no opportunity to tell the police of his alibi and that any error was therefore harmless since the impression left with the jury was entirely innocuous. While this may well be so, we pass the question in order to deal with the merits of the State's position to its full extent. This we understand to be that if a defendant, like Deatore, testifies exculpatorily at trial and had not told that story, but remained silent, at or near the time of his arrest, his silence and failure to volunteer then, whether or not he was questioned, may properly be brought to the attention of the jury on cross-examination in order to permit the inference that the exculpatory testimony is therefore untrue. We emphasize that this position goes beyond a situation where a defendant did make a statement at or near arrest, which is inconsistent with his trial testimony, or where conduct (as distinct from silence) at the time of the crime or thereafter is inconsistent with the story told at trial.
We are convinced that the State's position should not be adopted and that such cross-examination of a defendant is improper.
The Appellate Division reached that result on a federal constitutional basis, saying that questioning of this kind could not help but penalize a defendant for exercising his Fifth Amendment privilege against self-incrimination (by remaining silent), on the authority of Miranda v. Arizona, supra, 384 U.S. at 468, n. 37, 86 S. Ct. at 1624-25, 16 L. Ed. 2d at 720, and was as unfairly prejudicial as would be comment by the prosecutor on the failure of a defendant to testify in his own defense, forbidden by Griffin v. California, 380 U.S. 609, 85 S. Ct. 1229, 14 L. Ed. 2d 106 (1965).
Cases in other jurisdictions, both federal and state, have reached differing conclusions on this question as approached from a federal constitutional base (and otherwise); and because the decision in United States v. Hale, supra, rested on a different and non-constitutional ground,*fn5 there has been as yet no definitive decision of the United States Supreme Court, on the constitutional issue. A catalog of all the various cases would serve no useful purpose. We mention a few cases in the federal system as illustrative of the different results reached.
United States v. Anderson, 162 U.S. App. D.C. 305, 498 F.2d 1038 (1974), aff'd on other grounds sub nom. United States v. Hale, supra, in which many of the federal cases are collected and discussed, held that such questioning of a defendant at trial was improper by reason of the prohibition laid down in footnote 37 in Miranda v. Arizona, supra:
In accord with our decision today, it is impermissible to penalize an individual for exercising his Fifth Amendment privilege when he is under police custodial interrogation. The prosecution may not, therefore, use at trial the fact that he stood mute or claimed his privilege in the face of accusation. [498 F.2d at 1041 (quoting from Miranda, supra, 384 ...