On appeal from Superior Court of New Jersey, Law Division, Atlantic County.
Michels, Petrella and Baime. The opinion of the court was delivered by Baime, J.A.D.
[198 NJSuper Page 33] We granted the State's motion for leave to appeal from an interlocutory order permitting defendant, who is charged with a capital offense, to challenge the composition of the grand and petit jury arrays in Atlantic County, affording the accused the right to an evidentiary hearing and staying the trial. This appeal also concerns the efficacy of a related omnibus order
entered by the Presiding Judge of the Criminal Part barring dismissal of similar motions pending in Atlantic County on the ground of lack of timeliness and consolidating all such applications for the purpose of a hearing. The order further directs that the trials in such capital cases are to be stayed pending disposition of the questions presented. In order to prevent delay, we directed that the hearings ordered by the trial judge pertaining to the composition of the grand and petit jury arrays proceed during the pendency of this appeal.
The facts essential to resolution of the issues presented here are not in dispute and are essentially a matter of record. The Atlantic County grand jury returned a multi-count indictment charging defendant with murder, armed robbery and a variety of related weapons offenses. On September 6, 1983, defendant entered a plea of not guilty and filed a plethora of pretrial motions including a challenge to the grand jury array. Although the record is somewhat ambiguous, both parties agree that the latter motion was ultimately withdrawn. On May 30, 1984, the jury selection process commenced. On that day, defense counsel sought to attack the composition of the petit jury venire claiming "insufficient minority representation." The trial judge summarily rejected defendant's claim upon the ground that it was untimely. It subsequently developed, however, that the number of available jurors on the special panel selected for the capital case was insufficient. See R. 1:8-5. Based upon the joint application of the prosecutor and defense counsel, the existing panel was struck and the trial was rescheduled for July 24, 1984. The trial judge cautioned defense counsel that if he intended to challenge the array he was to file the appropriate application "no later than 30 days in advance of trial."
Pursuant to the trial court's direction, defendant filed a notice of motion on June 21, 1984, requesting an evidentiary hearing pertaining to the constitutionality of the grand and petit jury selection process, full discovery with respect to the issue and a stay of trial. A hearing was conducted on July 5,
1984. In support of his argument, defense counsel presented the affidavit of Jonathan Lamberth, a statistician, who had performed a preliminary study of the racial composition of persons summoned for jury service in prior years. The study disclosed a disparity between the percentage of black people residing in Atlantic County and those summoned for jury service. Additionally, the defense submitted affidavits of members of the criminal defense bar supporting the theory that blacks were substantially under-represented on petit jury panels. During the course of argument, defense counsel represented that discovery and preparation of a statistical analysis could be completed in one or two months. He further estimated that a full evidentiary hearing could be conducted within a period of five trial days.
Apparently persuaded by defense counsel's arguments, the trial judge granted the application for discovery and an evidentiary hearing. An order was entered staying the trial. Subsequently, the Presiding Judge entered orders precluding the dismissal of similar motions pending in capital cases on the basis of timeliness, consolidating such applications for a hearing and staying all such trials pending disposition of the grand and petit jury challenges. The court rejected the prosecutor's request to proceed with the capital trials and the evidentiary hearing concurrently. Subsequent motions for reconsideration were denied.
The State contends that defendant's challenge to the grand and petit jury arrays was filed well beyond the appropriate time period provided by our rules and should have been dismissed. The principal thrust of the State's claim is that such a motion must be made within 30 days of entry of the original plea absent a showing of good cause. The necessary predicate to the prosecutor's argument is that R. 1:8-3, R. 3:6-2 and R. 3:10-5 should be read in pari materia. Alternatively, the State contends that R. 1:8-3, which requires resolution of questions pertaining
to the composition of the petit jury array prior to trial, should be relaxed pursuant to R. 1:1-2. More specifically, the State asserts that the delay attributable to defendant's jury challenge will substantially impair its ability to prosecute. It is argued that such prejudice is magnified by virtue of the Presiding Judge's "overly broad" order staying "indefinitely" all capital trials pending disposition of the consolidated motions. Under these circumstances, the State contends that the stay should be vacated so that capital trials can proceed expeditiously.
We note at the outset that our rules are somewhat ambiguous with respect to the requisite time periods within which motions challenging the grand and petit jury arrays must be filed. R. 1:8-3 merely provides that a challenge to the petit array must be decided "before any individual juror is examined." R. 3:6-2 is substantially more specific and states that a challenge to the grand jury array is to be made "within 30 days of the service of the complaint or within 30 days of the entry of a plea, whichever is later, or within such further time as the court permits." (emphasis added). Although the latter rule seems simple enough, its relationship to R. 3:10-1, R. 3:10-2 and R. 3:10-5 creates substantial interpretive problems. R. 3:10-1 states that "[a]ny defense or objection capable of determination without trial . . . may be raised before trial. . . ." In a somewhat similar vein, R. 3:10-2 provides that "defenses and objections based on defects in the institution of the prosecution or in the indictment . . . must be made by motion before trial. . . ." Finally, R. 3:10-5 states that all "motion[s] made pursuant to R. 3:10 which [are] required or permitted to be made before trial shall be ...