On certification to the Superior Court, Appellate Division.
For affirmance -- Chief Justice Wilentz and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. For reversal -- None. The opinion of the Court was delivered by Stein, J.
In this case appellant contests the validity of the procedure employed by the trial court for the exercise of peremptory challenges. Appellant was entitled to twenty peremptory challenges and the State to twelve. Rather than alternate the exercise of peremptory challenges between the State and appellant, the trial court required appellant to exercise two challenges and the State one challenge for eight successive rounds of challenges. During the last four rounds, each side was to alternate in exercising its remaining challenges. The State or appellant could pass at any time, subject to the risk that all further challenges were lost if both sides passed successively. Appellant contends that the procedure adopted by the trial court infringed so significantly upon the exercise of his right of peremptory challenge as to deprive him of a fair trial. We reject his contentions and affirm the conviction.
Appellant was charged in a three-count indictment with two counts of aggravated sexual assault during the commission of a kidnapping (N.J.S.A. 2C:14-2a) and one count of kidnapping by unlawful confinement for a substantial period with a purpose to facilitate the commission of sexual assault (N.J.S.A. 2C:13-1b(1)). He was convicted by a jury of aggravated sexual assault, sexual assault, and kidnapping. The sexual-assault conviction was merged into the conviction for aggravated sexual assault. Appellant was sentenced to a term of 20 years with
10 years parole ineligibility for the aggravated-sexual-assault conviction and to a concurrent 20 year term for the kidnapping conviction. The judgment of conviction was affirmed by the Appellate Division in an unpublished opinion. We granted certification limited solely to the questions raised as to the method of jury selection. 97 N.J. 681 (1984).
In view of the offenses charged in the indictment, appellant was entitled to twenty peremptory challenges and the State to twelve. N.J.S.A. 2A:78-7; R. 1:8-3. Prior to jury selection, the trial court announced the procedure to be followed in asserting peremptory challenges: "The State will have the first challenge. The defense will then challenge two jurors, and that will be the procedure for the first eight sets of challenges. After that, each side will have an equal number of challenges." Responding to questions from counsel about the procedure, the trial court explained that the defendant could pass at any time during the challenge procedure without waiving his remaining challenges. If, however, the defense and the State passed successively, the jury would be deemed acceptable to both sides. Appellant's counsel objected to the procedure announced by the trial court, contending that it was inconsistent with Rule 1:8-3 and circumvented his client's right to exercise more challenges than the State during the final stages of jury selection:
[F]ollowing your procedure, the State, after a given point, and myself, are going to be equal in selecting the jury on the final challenge. That is not the intent of the rule. I make this objection strongly. I don't know if I have to use all my challenges. I don't want to be foreclosed using the two-for-one rule. You are circumventing a rule and I think my client's rights under Rule 1:83, to have the final challenges, I use that in plural on his behalf. You are also changing my strategy of picking a jury, versus the normal strategy I've had in other counties, one-on-one, until the final eight.
The trial court rejected the arguments of appellant's counsel, and the parties exercised their peremptory challenges in accordance with the procedure set forth by the trial court. The defense used all twenty challenges. The State did not exhaust its challenges.
Appellant raises a further contention concerning the size of the jury ultimately impaneled. Prior to jury selection, the trial court announced its intention to impanel a jury of sixteen because of the anticipated length of the trial. See N.J.S.A. 2A:74-2; R. 1:8-2(d). Both counsel agreed. Challenges were exercised on the assumption that a jury of sixteen would be impaneled. However, the pool of jurors available to the trial court was exhausted prior to the completion of peremptory challenges. As a result, when appellant exercised his final three peremptory challenges, reducing the size of the jury from sixteen to thirteen, there were no jurors available to replace the three challenged jurors. The trial court then announced its intention to proceed to trial with thirteen jurors. Appellant moved for a mistrial or, in the alternative, for an adjournment until a new jury panel was available. Both motions were denied. Appellant contends that the trial court's decision not to replace the last three challenged jurors improperly deprived him of three peremptory challenges.
The Appellate Division expressly considered and rejected appellant's challenges to the procedure used for exercising peremptory challenges and to the trial court's reduction of the size of the jury panel.
Although the right of a defendant to challenge jurors peremptorily is guaranteed by neither the federal constitution, Stilson v. United States, 250 U.S. 583, 586, 40 S. Ct. 28, 29, 63 L. Ed. 1154, 1156 (1919), nor the New Jersey Constitution, Brown v. State, 62 N.J.L. 666, 678 (E. & A.), aff'd, 175 U.S. 172, 20 S. Ct. 77, 44 L. Ed. 119 (1899), it nevertheless is a right with deep historic roots. The right to exercise peremptory challenges was accorded to criminal defendants at common law and was accepted as part of the received common law in the early colonial and state courts. J. Van Dyke, Jury Selection
Procedures 148 (1977) (hereafter Van Dyke); Brown v. State, ...