On appeal from the Superior Court, Law Division, Atlantic County.
McElroy, Dreier and Shebell. The opinion of the court was delivered by Shebell, J.A.D.
Defendant Dominic M. Sapienza was charged in a two count State grand jury indictment handed down on March 20, 1984 with third degree terroristic threats (N.J.S.A. 2C:12-3a) and third degree witness tampering (N.J.S.A. 2C:28-5). A trial date of October 22, 1984 was set but was changed to October 23rd at the State's request. On October 19, 1984 the parties appeared before the trial court to air a defense contention that the State's commencing of related State grand jury proceedings on October 22nd would affect the pending trial. The judge returned the trial date to October 22nd and denied defense motions to quash grand jury subpoenas and to dismiss the indictment. He, however, ordered the State not to proceed before the grand jury until the trial was concluded or a plenary hearing held. He also denied the State's motion for a stay.
It was disclosed to the court on October 22, 1984 that the State violated its order as a potential witness in the upcoming trial had testified before the State grand jury that morning. The judge ordered the State to obtain a transcript of the witness' testimony. The next day however the State obtained an order from the Honorable Samuel D. Lenox, Jr., A.J.S.C., who presides over the State grand jury, permitting inspection in camera of the grand jury testimony by the trial judge but also providing that:
On October 24, 1984 the trial judge held a hearing to determine the effect of the State's actions and dismissed the Sapienza indictment. The State appeals the dismissal of the indictment. We reverse.
Prior to trial the State suspected that there may have been attempts to tamper with witnesses in the case. The State proceeded to investigate and issued State grand jury subpoenas to several persons who were scheduled to be witnesses at the trial. Defendant sought judicial relief on the grounds that the
State was misusing the grand jury for pretrial discovery purposes and creating a "chilling effect" on the testimony of potential defense witnesses. The initial relief granted by the trial court was to protect the status quo and prevent any such trial interference. It was violated to the extent that a Deputy Attorney General, who was allegedly unfamiliar with the order, called one witness before the grand jury. Whether this witness was solely a State's witness or may possibly have been a defense witness is open to question.
Following the hearing to determine the effect of the State's investigation and the grand jury proceedings the court stated:
The court went on to state however:
The judge asserted he was dismissing the indictment on two grounds: first, that he was denied control of the case because of Judge Lenox's order in that he could no longer grant such relief as might be required, and second, that there was a misuse of the Grand Jury because "[t]here has been no showing whatsoever that there was any need to call these people before that Grand Jury on the day of trial, or literally on the eve of trial, no showing whatsoever." However, the trial judge determined that there was no evidence of a "chilling effect" or intimidation of witnesses by the State's action. This finding is amply supported by the record and there is no reason to disturb it. See State v. Johnson, 42 N.J. 146, 162 (1964).
Both the United States Supreme Court and this State's Supreme Court have recognized the strong public interest in the secrecy of grand jury proceedings. United States v. Procter & Gamble Co., 356 ...