Conford, Michels and Pressler. The opinion of the court was delivered by Conford, P.J.A.D. Michels, J.A.D. (dissenting).
The critical issue posed on this appeal is whether, on a trial of a defendant for armed robbery, a venireman who on voir dire states he was the victim of an armed robbery 17 days before the trial, and was challenged for cause, was required to have been excused by the court even though he professed his ability to sit as a fair and impartial juror in the case. After denial of the challenge for cause, defendant challenged the juror peremptorily and thereafter exhausted his allotment of peremptory challenges before the jury was chosen. It is clear that in such circumstances if the ruling of the trial court was erroneous, there was prejudice per se and a reversal of defendant's conviction would be required. Wright v. Bernstein , 23 N.J. 284, 295 (1957); and see State v. Deatore , 70 N.J. 100, 105 (1976). Cf. State v. Calabrese , 107 N.J.L. 115, 119 (E. & A. 1930); Drake v. State , 53 N.J.L. 23, 33 (Sup. Ct. 1890).
The most comprehensive modern discussion by our courts of the law with respect to the need for impartial trial jurors is that of Justice Jacobs in State v. Jackson , 43 N.J. 148
(1964), cert. den. 379 U.S. 982, 85 S. Ct. 690, 13 L. Ed. 2d 572 (1965). The court there reversed a murder conviction for failure of the trial court to excuse a juror who stated that certain members of the police department (in the city where the murder took place) were his neighbors and friends, and that a detective, who was an important witness for the State, had been his close friend for many years. The court restated the cardinal doctrine in this area, as previously enunciated by Justice Oliphant in Wright v. Bernstein, supra , 23 N.J. at 294-295 as follows:
The fundamental right of trial by a fair and impartial jury is jealously guarded by the courts. The jury is an integral part of the court for the administration of justice and on elementary principles its verdict must be obedient to the court's charge based solely on legal evidence produced before it and entirely free from the taint of extraneous considerations and influences. The parties to the action are entitled to have each of the jurors who hears the case impartial, unprejudiced and free from improper influences. [43 N.J. at 158]
The court also quoted with approval a New Hampshire court's dictum that "the trial court should see to it that the jury is as nearly impartial 'as the lot of humanity will admit.'" 43 N.J. at 157-158.
In Jackson , while reaffirming the general principle that a "trial court is vested with broad discretionary powers in determining the qualifications of jurors and that its exercise of discretion will ordinarily not be disturbed on appeal," id. at 160, the court nevertheless emphasized that the ultimate question of the juror's bias could not be left by the court to the juror's own opinion on the subject. It pointed to Circuit Judge Murrah's opinion in United States v. Chapman , 158 F.2d 417, 419 (10 Cir. 1946), "that impartiality is not a technical concept and that a party's right to a fair and impartial trial is to be resolved in accordance with high standards of human conduct" (43 N.J. at 158); further, from Chapman (158 F.2d at 421), "* * * the ultimate question is a judicial one for the court to decide, and in
case of doubt, justice demands that the challenge be allowed." (43 N.J. at 158-159).
In concluding for reversal in Jackson the court made the additional observation, one highly significant in relation to the precise issue before us, that: "In any sound judicial system it is essential not only that justice be done but also that it appear to be done." 43 N.J. at 160-161.
These highly sensitive standards for adjudicating jury impartiality were recently redeclared with emphasis in State v. Deatore , 70 N.J. 100, 105-106 (1976). The court there reversed a robbery conviction on the ground that the trial court had denied defense counsel the opportunity to examine a prospective juror on the extent of her relationship with the victim of the robbery, she having previously said she knew him "personally and [on] business." The court adopted the reasoning of the Appellate Division which had said that an intelligent appraisal as to likelihood of bias could not be formed without the requested examination. 70 N.J. at 105. It was further declared: "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.'" Ibid.
New Jersey authority relevant to the precise aspect of the jury-bias question here before us -- prior victimization of the juror in a crime like that involved in the prosecution -- is confined to the Grillo-De Vita felony murder case which engaged our state and federal courts a generation ago. State v. Grillo and De Vita , 16 N.J. 103 (1954); United States v. McCorkle , 133 F. Supp. 169 (D.C.N.J. 1955), rev'd, 248 F.2d 1 (3 Cir. 1957), cert. den. 355 U.S. 873, 78 S. Ct. 121, 2 L. Ed. 2d 77 (1957). In Grillo and De Vita, supra , there were appeals from the denial of motions for a new trial after convictions of the defendants for felony-murder. These named defendants had been sentenced to death, and a confederate to life imprisonment, at the hands of a jury. The victim of the crime was a special officer shot
and killed during a robbery as he was escorting a supermarket manager from his store to a bank with the day's receipts. Some of the veniremen had been examined on voir dire as to whether they or their families had been the victims of a robbery. One of them, Kuhnle, was not so questioned, but only generally as to whether he could decide the case fairly, without prejudice or passion. He responded to such questioning in the affirmative, and was seated as a juror without objection. Kuhnle did not volunteer the information, as was the fact, that 11 months prior to the trial he had been the victim of a robbery at gun-point, apparently while transporting money in his capacity as night manager of a Western Union office to a bank. After ascertaining this fact defendants sought a new trial on grounds of concealment by the juror and bias. The motion was denied.
On appeal, a 5-2 majority of the Supreme Court held there had been no error. "Diligence at the voir dire examination * * * would have brought the Kuhnle robbery incident to light." 16 N.J. at 110. On the merits, the court held that "the imputation of bias to Kuhnle, as a matter of law, because he once had been the victim of highway robbery is only surmise and speculation * * *." Id. at 113; further, that "[t]here is no case made here that the facts are such as in law necessarily raise the presumption of partiality." Id. at 114; (emphasis supplied).
In dissent, Justice Wachenfeld, an experienced trial lawyer and former Essex County prosecutor, said:
One who has been assaulted, threatened with a deadly weapon and robbed is not likely to forget or forgive nor to treat lightly or even fairly similar conduct in others. This is a normal human reaction following customary behavior, expected and ...