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State v. Dunne

Decided: May 30, 1991.


On certification to the Superior Court, Appellate Division.

The opinion of the Court was delivered by O'Hern, J. Chief Justice Wilentz and Justices Clifford, Pollock, and Stein join in this opinion. Justice Handler has filed a separate dissenting opinion in which Justice Garibaldi joins.


A jury has convicted defendant of a bizarre murder that occurred in the South Mountain Reservation in 1986. The principal ground of appeal before us is that defendant was improperly denied the right to have the charges tried by a judge and not a jury. We hold that there is no unilateral right to a non-jury trial in such circumstances and that the trial court did not abuse its discretion in determining that the issues were properly to be decided by a jury.


On the morning of May 11, 1986, a security guard at Saint Barnabas Hospital in Livingston observed a car on the curb outside the hospital entrance. The driver's door was ajar. A man, in obvious pain and bleeding from the chest, was sitting in the driver's seat. He was a resident physician at the hospital. There was blood inside the car. The dying man brought to the

guard's attention a license plate number that he had written on an index card that was on the passenger's seat. Despite extensive surgery in an attempt to save his life, he bled to death from a stab wound to his heart by early afternoon of that day.

On the basis of the index card, the police determined that the license plate belonged to a car that had been rented by defendant, a resident of 23 Quarry Terrace in West Orange. The rented car was observed parked in front of that address. The police also received a call from defendant's cousin, informing them that defendant had told him that he might have stabbed someone. The police went to 23 Quarry Terrace and spoke with defendant's cousin, who told them defendant was inside the house. In response to a request from the police, defendant's cousin brought defendant outside. After arresting defendant, the police entered the house and found a knife on the coffee table. Because the crime had occurred at the South Mountain Reservation, within the jurisdiction of the Essex County Police, the police transported defendant to the Essex County Police Headquarters in Newark, accompanied by his father. When the police informed them that the victim had died, defendant and his father started to cry. Defendant confessed that earlier that morning he had ventured upon the victim in the Reservation, and had stabbed him.

Defendant anticipated raising an insanity defense at trial that would require testimony on the abnormal homosexual fantasies that may have moved defendant to attack the victim. Fearing adverse jury reaction to that defense, defendant made a pretrial motion for a non-jury trial. The trial court denied that motion. At trial, defendant raised the insanity defense, having indicated to his testifying physician that he had heard vague and indistinct voices telling him to "do it." The doctor testified that defendant suffered from paranoid schizophrenia. In the opinion of the doctor, defendant, on the morning of May 11, 1986, became acutely psychotic and lost touch with reality. For unexplained reasons, defendant's persistent fantasies of homosexual

gratification and aggression blended with reality, resulting in the attack. The doctor believed that defendant did not know that what he was doing was wrong.

The jury convicted defendant of murder. During deliberations the jury requested two read-backs of the psychiatric testimony offered by defendant, and asked the court for the legal definition of insanity. The jury also asked if it could return a verdict with a recommendation and if defendant would receive proper treatment and medication without regard to its verdict. Following the conviction, the court sentenced defendant to thirty years' imprisonment. The Appellate Division affirmed the conviction, and we granted defendant's petition for certification. 117 N.J. 638 (1989).


As noted, the principal point raised in defendant's appeal is that the trial court erred in denying defendant's motion for a bench trial. That argument actually has two aspects: (a) whether defendant was entitled to a bench trial as a matter of right, or (b) whether the trial court abused its discretion in not granting a bench trial.

Defendant based his request for a non-jury trial on two grounds. First, defendant suggested that the jury would be prejudiced against him by the psychiatric testimony that was to be presented on the defense of insanity. He submitted that the jury "when encountering a really terrible killing which occurred in a public place for no apparent reason * * * may well feel that letting Mr. Dunne off on psychiatric grounds is not adequate, is dangerous, is risky, and goes against their moral beliefs." Second, he argued that because the defense would be presenting medical evidence that would reveal that defendant had violent and abnormal homosexual fantasies, the jury's evaluation of the testimony on the insanity defense would become tainted and biased against him.

Defendant argued that a jury waiver was appropriate because the court would be in a better position to evaluate the psychiatric testimony and the insanity defense without any of the anticipated biases of the jury. The trial court denied the motion to waive the jury, ruling that "this is the kind of case that is appropriate to have the community decide the case, that the community should be the one that should obtain in a case of this nature. I see no compelling reasons why the case should go non-jury." The court further noted that the proposed jury voir dire would sufficiently screen out jurors who would be prejudiced against defendant.

We deal first with the question of whether defendant had a unilateral or absolute right to demand a non-jury trial, and then with the question of whether the trial court abused its discretion in not granting a non-jury trial.


Over sixty years ago, in Patton v. United States, 281 U.S. 276, 74 L. Ed. 854 (1930), Justice Sutherland set forth the guiding principles that dictate the disposition of this case. In Patton, a defendant in a prohibition bribery trial had consented in open court that his trial should continue with only eleven jurors, following the removal of one juror who had become seriously ill. The eleven remaining jurors found him guilty. On appeal, the defendant challenged the jurisdiction of the District Court to conduct a trial with only eleven jurors, even with the consent of the defendant. The Court reviewed all of the outstanding precedent that would give light to an understanding of the constitutional right of a defendant to demand trial by jury under article III, section 2, clause 3, and the sixth amendment of the United States Constitution. In light of the provisions' history, the Court concluded that "it is reasonable to conclude that the framers of the Constitution simply were intent upon preserving the right of trial by jury primarily for the protection of the accused." Id. at 297,

74 L. Ed. at 862. The Court did not believe that the framers intended to establish the jury in criminal trials as an "integral and inseparable part of the court." Ibid. It thus concluded that "article III, § 2, is not jurisdictional, but was meant to confer a right upon the accused which he may forego at his election. To deny his power to do so is to convert a privilege into an imperative requirement." Id. at 298, 74 L. Ed. at 863.

The Court next considered whether a court should deny a defendant's power to waive a trial by jury in criminal cases on grounds of public policy. The Court concluded that because a defendant indeed had the right to waive the trial itself by pleading guilty to the charges, it would not be contrary to public policy to permit the lesser event, that is, the submission to trial by fewer than twelve jurors or by a judge.

The Court set forth principles that remain of enduring guidance.

In affirming the power of the defendant in any criminal case to waive a trial by a constitutional jury and submit to trial by a jury of less than twelve persons, or by the court, we do not mean to hold that the waiver must be put into effect at all events. That, perhaps, sufficiently appears already. Trial by jury is the normal and, with occasional exceptions, the preferable mode of disposing of issues of fact in criminal cases above the grade of petty offenses. In such cases the value and appropriateness of jury trial have been established by long experience, and are not now to be denied. Not only must the right of the accused to a trial by a constitutional jury be jealously preserved, but the maintenance of the jury as a fact-finding body in criminal cases is of such importance and has such a place in our traditions, that, before any waiver can become effective, the consent of government counsel and the sanction of the court must be had, in addition to the express and intelligent consent of the defendant. And the duty of the trial court in that regard is not to be discharged as a mere matter of rote, but with sound and advised discretion, with an eye to avoid unreasonable or undue departures from the mode of trial or from any of the essential elements thereof, and with a caution increasing in degree as the offenses dealt with increase in gravity.

[Id. at 312-13, 74 L. Ed. at 870.]

Consistent with those principles, Rule 23(a) of the later-enacted Federal Rules of Criminal Procedure provides that "cases required to be tried by jury shall be so tried unless the

defendant waives a jury trial in writing with the approval of the court and the consent of the government."

In Singer v. United States, 380 U.S. 24, 25, 13 L. Ed. 2d 630, 632 (1965), the defendant challenged the constitutionality of Rule 23(a), arguing that the United States Constitution "gives a defendant in a federal criminal case the right to waive a jury trial whenever he believes such action to be in his best interest, regardless of whether the prosecution and the court are willing to acquiesce in the waiver." Singer was charged with mail fraud. He offered to waive a jury in order to shorten the trial. Even though the trial court was willing to approve the waiver, the prosecution refused to consent. After reviewing English and American history surrounding the waiver of a jury trial, the Supreme Court concluded:

A defendant's only constitutional right concerning the method of trial is to an impartial trial by jury. We find no constitutional impediment to conditioning a waiver of this right on the consent of the prosecuting attorney and the trial judge when, if either refuses to consent, the result is simply that the defendant is subject to an impartial trial by jury -- the very thing that the Constitution guarantees him.

[Id. at 36, 13 L. Ed. 2d at 638.]

Limiting its decision to the facts, however, the Singer court suggested an exception to the rule by pointing out that because the petitioner had requested the waiver only to save court time, it need not determine whether there might be some circumstances where a defendant's reasons for wanting to be tried by a judge alone are so compelling that the Government's insistence on trial by jury would result in the denial to a defendant of an impartial trial.

[Id. at 37, 13 L. Ed. 2d at 639.]

Absent proof of such special circumstances, federal constitutional doctrine remains the same, that there is no federal constitutional right to trial by a judge alone.

The question arises, then, whether we should interpret our New Jersey constitutional provision for trial by jury in any significantly-different manner. See N.J. Const. of 1947 art. I, §§ 9, 10. We are unable to find any significant constitutional preference in New Jersey's history or tradition for a different result. Cf. State v. Hempele, 120 N.J. 182 (1990)

(decidedly higher notions of personal privacy warrant different rule in New Jersey for protection of waste disposal from those prevailing elsewhere). New Jersey's consistent tradition has been that every right and privilege secured by our State Constitution belongs to each citizen, "as a personal right. " State v. Stevens, 84 N.J.L. 561, 563 (Sup. Ct. 1913). That tradition includes, specifically, the guarantee that "the accused shall have the right to a speedy and public trial by an impartial jury," N.J. Const. of 1947 art. I, § 10, and "so far as [the] right to a trial by jury is concerned, [a defendant] may waive it." State v. Stevens, supra, 84 N.J.L. at 563. Our courts found, as did the United States Supreme Court, that there is no constitutional impediment to the exercise of jurisdiction to try criminal causes without a jury. In Edwards v. State, 45 N.J.L. 419 (Sup. Ct. 1883), the defendant contended that the Legislature did not have the capacity under the Constitution to provide for non-jury trial of certain limited or petty offenses. The Edwards Court invoked the same rationale as did the United States Supreme Court in Patton v. United States, supra, 281 U.S. 276, 74 L. Ed. 854, noting that those constitutional rights were personal to the defendant and could be waived. In short, nothing in New Jersey's history or tradition suggests any implied correlative right on the part of a defendant to demand trial by a judge and not by jury.


The remaining question is whether the trial court abused its discretion in denying defendant's request for a non-jury trial.

Rule 1:8-1(a) is the provision in our Rules that deals with non-jury trials in criminal cases. Like the federal rule, our state Rule mandates that the defendant must first obtain the approval of the trial court in order to waive the right to a jury trial. Our Rule differs from the federal rule in that except in capital cases pursuant to N.J.S.A. 2C:11-3c(1), our Rule does

not require the approval of the prosecutor; it merely requires notice to the prosecutor that the defendant has waived the right. See State v. Davidson, 225 N.J. Super. 1 (App. Div. 1988).

The 1969 Revision of our Rules changed criminal practice by eliminating the State's consent as a prerequisite to the defendant's waiver of a jury trial. The history of the Rule has been well summarized in the 1991 edition of Rules Governing the Courts of the State of New Jersey. Judge Pressler notes that the Criminal Practice Committee was expressly aware that the constitutionality of the analogous federal Rule 23(a), requiring the government's consent as well as the consent of the court and the defendant, was sustained by Singer v. United States, supra, 380 U.S. 24, 13 L. Ed. 2d 630. Pressler, Current N.J. Court Rules, Comment on R. 1:8-1 at 70 (1991).

One court has interpreted the 1969 deletion of the requirement of prosecutorial consent as, in effect, creating a constitutional preference for non-jury trial, at least when one is requested by a defendant. State v. Fiorilla, 226 N.J. Super. 81 (App. Div. 1988). In Fiorilla, the defendants were accused of various Medicaid-fraud charges relating to their operation of nursing homes. The defendants moved for a waiver of jury trial, citing extensive pretrial publicity and the likely length and complexity of the trial. Concerned about the public's expectation of trial by jury, the trial court denied the defendants' motion. Reversing the trial court's decision, the Appellate Division held that "the trial judge erroneously failed to consider the substantial good-faith reasons advanced in support of waiver in exercising his discretion to preclude bench trial solely because of his perception of public expectation." Id. at 93.

The Appellate Division found that although the defendants did not have a constitutional right to waive jury trial, a trial court should not deny the defendants' waiver unless "sufficient reasons exist." Id. at 90. In an effort to give

guidance to trial courts, the Fiorilla court set out a three-pronged test for determining when a court should deny the ...

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