On appeal from the Superior Court, Appellate Division, whose opinion is reported at 156 N.J. Super. 303 (1978).
For reversal -- Justices Mountain, Jacobs, Pashman and Schreiber. For affirmance -- Chief Justice Hughes and Justices Clifford and Handler. The opinion of the court was delivered by Pashman, J. Jacobs, J., concurring. I join Justice Pashman's opinion and vote to reinstate the defendant Singletary's conviction. Justice Schreiber joins in this opinion. Clifford, J. dissenting. Handler, J., dissenting. The Chief Justice and Justice Clifford join in this dissent.
The issue raised by this appeal is whether, under the facts of this case, the trial court's refusal to excuse for cause a prospective juror who had been the recent victim of a crime similar in nature to that with which a defendant was charged constituted reversible error, where the juror was subsequently excused through defendant's exercise of a peremptory challenge. The Appellate Division held that in the present case such a refusal amounted to prejudicial error, and ordered that defendant be given a new trial. We conclude that the trial court's decision did not transcend the bounds of reasonable discretion and that defendant received a fair trial. Consequently, we reverse and reinstate the conviction.
The facts of this case are essentially undisputed. On October 21, 1975, defendant and one Eugene Leggett were indicted by a Passaic County Grand Jury for robbery while armed, in violation of N.J.S.A. 2A:141-1 and N.J.S.A. 2A:151-5. The charges arose out of an August 18, 1975 hold-up of Robert Sandifer, an employee at Chuck's Wrigley Park Tavern in Paterson. The two men were tried separately and Leggett is not involved in this appeal.
Juror selection at defendant's trial commenced on January 23, 1976. Prospective jurors were closely questioned by the court concerning their relationship with persons participating in the case or employed in the law enforcement field; their involvement as victims in prior crimes; personal background; and their ability and willingness to serve fairly and impartially. At the conclusion of the day's proceedings, 17 peremptory challenges had been exercised by the defense, 9 had been utilized by the State,*fn1 and 4 prospective jurors had been excused for cause by the trial judge.*fn2
Jury selection continued on January 26. After one prospective juror was excused due to acquaintance with State witnesses and another was peremptorily challenged by the defense, venireman Kenneth J. Sheeran was called. During the court's voir dire examination of Sheeran, the following colloquy occurred:
Q. Have you been the victim of a crime?
Q. Will you tell me when, and the nature?
A. I work for a bank in New York City and it was held up on January 9th.
Q. January 9th of this year?
A. Of this year, yes, sir.
Q. Do you feel that that particular event, having been so recent, would have any effect on your ability to sit as a fair and impartial juror in this case?
Q. Mr. Sheeran, will you apply the law as I will explain it to be regardless of any personal feeling you have about that law?
Q. Do you have any bias or prejudice against a person simply because he's charged with a crime?
Q. Do you know anything about this particular case?
Q. Do you or any members of your family have any interest in the outcome of a criminal case now pending in our courts?
Q. Have you ever been party to, or personally interested in the outcome of a criminal case?
Q. Would you give any greater or less weight to the testimony of a police officer simply because of his official capacity?
Q. Mr. Sheeran, if you're selected to serve on this jury, would you be a fair and impartial juror to both the State and to the defendant?
After a brief sidebar conference, the questioning continued as follows:
Q. Mr. Sheeran, in connection with the bank robbery, which you've mentioned which occurred just a few weeks ago, were you actually involved in that particular robbery . . .
Q. (continuing) or was it just a robbery in your particular branch?
A. No, I was involved in it.
Q. Was it an armed robbery?
Q. And do you feel that that particular circumstance, considering that this case involves a charge of robbery and being armed during the commission of the robbery, that that particular event so recently would not affect your ability in any way to sit on this case?
The defense then exercised its 19th peremptory and dismissed Sheeran. Thus, Sheeran did not in fact sit as a juror in defendant's trial.
The sidebar conference which occurred during the interrogation of Mr. Sheeran involved a request by defense counsel that Sheeran be questioned as to the extent of his involvement in the bank robbery. Counsel indicated that if Sheeran
were, in fact, an actual victim of the crime he would move for his excusal for cause. The trial court, in response to these remarks, stated that inasmuch as Sheeran professed an ability to be fair and impartial no challenge for cause would be granted.
Subsequent to Sheeran's dismissal, three veniremen were peremptorily excused: two by the State and one by defense counsel -- who thereby exercised his final peremptory challenge. Finally, a jury of 14 was selected and empanelled. Defense counsel stated for the record his version of the sidebar conference, noted his contention that Sheeran should have been excused for cause, and emphasized that he had been required to exhaust his entire complement of peremptory challenges.
The actual trial spanned two days. The State's case rested largely on the testimony of Robert Sandifer, the alleged victim of the robbery. Sandifer identified the defendant as one of three men who threatened him with a revolver, held him up and took his money along with a case of scotch and a small amount of cash belonging to the tavern. The defense both attacked the accuracy of Sandifer's identification and attempted to establish an alibi.
The jury found defendant guilty of the robbery and further concluded that he had been armed during its commission. Defendant was sentenced to an aggregate of 10-13 years, including 6-8 years for the robbery and a consecutive 4-5 year term for being armed.
The Appellate Division, one judge dissenting, reversed the conviction. State v. Singletary, 156 N.J. Super. 303 (App. Div. 1978). In its view, the failure to excuse venireman Sheeran for cause constituted prejudicial error. The State filed an appeal as of right to this Court pursuant to R. 2:2-1(a)(2).
Defendant claims that the trial court's refusal to excuse venireman Sheeran for cause constituted prejudicial error in that he was deprived of his full complement of twenty
peremptory challenges. It must be emphasized that this denial of peremptory challenges is defendant's sole ground of appeal. Defendant has not alleged that the jury ultimately empanelled was other than impartial nor has he contended that his trial was less than fair. Rather, he maintains that the erroneous denial of a challenge for cause is per se ...