On appeal from Superior Court of New Jersey, Law Division, Mercer County.
Approved for Publication, June 12, 1995
Before Judges Shebell, Skillman and Wallace. The opinion on the court was delivered by Skillman, J.A.D.
The opinion of the court was delivered by: Skillman
The primary issue presented by this appeal is whether a trial court should consider the racial demographics of the county in which a crime was committed in selecting the county from which to draw a foreign jury.
Defendant is a black man charged with a capital murder. The victim was a young white woman who was raped and then murdered when she came into the City of Trenton in December of 1992 to paint a mural. The victim's body was located on February 18, 1993, and defendant was charged with the murder shortly thereafter. Subsequent to that time, this case has been the subject of extensive and continuous newspaper coverage in Mercer County, including a series of highly inflammatory articles published in the Trentonian, a daily newspaper distributed in Mercer County and the immediately adjoining area.
Based on this pretrial publicity, defendant made a motion for a change of venue or the impanelling of a foreign jury. The trial court concluded that a foreign jury was required because the Trentonian's "vengeance-seeking crusade" against defendant was so "constant," "prolonged," and "sensationalized" that there was a "likelihood of its taint permeating the trial." The court also determined to impanel a foreign jury rather than to change venue because "virtually all of the witnesses who will appear at the time of trial are located in Mercer County." However, the court rejected defendant's request for a foreign jury drawn from Camden County, which has "black-white demographics" that are nearly the same as those of Mercer County, because Camden County is not contiguous to Mercer County. Instead, the court decided, referring to reasons of "convenience" and "economy of time," that the foreign jury should be drawn from Hunterdon County. An order memorializing this ruling was entered on April 5, 1995.
Defendant filed an emergent motion for leave to appeal from the part of the order designating Hunterdon County as the source from which the foreign jury will be drawn, and the State filed a cross motion for leave to appeal from the part of the order requiring the impanelling of a foreign jury. *fn1 We granted both motions on April 13, 1995, and set an accelerated schedule for briefing and argument.
Since a reversal of the order requiring a foreign jury would make it unnecessary to consider defendant's appeal from the part of the order designating Hunterdon County as the source of that jury, we consider the State's cross appeal first. Rule 3:14-2 authorizes a change of venue or trial by a foreign jury "if the court finds that a fair and impartial trial cannot otherwise be had." A trial court should grant such relief "where it is necessary to overcome the realistic likelihood of prejudice from pretrial publicity.'" State v. Biegenwald, 106 N.J. 13, 33, 524 A.2d 130 (1987) (quoting State v. Williams, 93 N.J. 39, 67-68 n.13, 459 A.2d 641 (1983)). The "realistic likelihood of prejudice" test serves to ensure that a defendant is afforded a fair trial by a panel of impartial jurors, as required by the Sixth Amendment to the United States Constitution and Article I, paragraph 10 of the New Jersey Constitution. Irvin v. Dowd, 366 U.S. 717, 722, 81 S. Ct. 1639, 1642, 6 L. Ed. 2d 751, 755 (1961); State v. Koedatich, 112 N.J. 225, 267-68, 548 A.2d 939 (1988), cert. denied, 488 U.S. 1017, 109 S. Ct. 813, 102 L. Ed. 2d 803 (1989). "The trial court's responsibility under both the federal and State constitutions to preserve the integrity of the jury and minimize the danger that prejudice will infiltrate the adjudicatory process is at its peak in cases involving the death penalty." State v. Williams, (supra) , 93 N.J. at 63; accord State v. Koedatich, supra, 112 N.J. at 282. In determining whether there is a "realistic likelihood of prejudice from pretrial publicity," our Supreme Court distinguishes between "cases in which the trial atmosphere is so corrupted by publicity that prejudice may be presumed, ... and cases in which pretrial publicity, while extensive, is less intrusive, making the determinative issue the actual effect of the publicity on the impartiality of the jury panel." State v. Biegenwald, supra, 106 N.J. at 33. A trial court's decision that pretrial publicity has been so prejudicial that a change of venue or foreign jury is required will not be disturbed on appeal except upon a showing of an abuse of discretion. State v. Marshall, 123 N.J. 1, 76, 586 A.2d 85 (1991).
Although "cases in which prejudice may be presumed due to pretrial publicity are relatively rare," State v. Koedatich, supra, 112 N.J. at 269, the trial court did not abuse its discretion in concluding that this is such a case. The court found based on its review of various headlines, articles and editorials that the Trentonian has undertaken a "crusade" for imposition of the death penalty upon defendant:
The Trentonian ran headlines, many of them front page: "He Knows What He Did," "Ex-Inmate: Suspect Is A Loudmouthed Punk," "Huggins Suspect Would Kill You In A Heartbeat," "Profile Of A Monster - The Man Who Killed Kristen Huggins Committed His First Rape As A Teenager," "From Boy To Beast," "Artist Murderer Indicted In Robbery," "Huggins Slayer Terrorized Prison," "He's Satan In Disguise," "Artist Slayer Claims Innocence in Rapes," "Slobbering Killer Tells Judge 'I Had to Spit,'" "Expert Says Rape Indictment Will Prompt Jury To ... KILL HIM!"
A February 24, 1993, Trentonian editorial confirmed that Ambrose Harris was no longer the subject of a news story, but rather the target of the newspaper's crusade:
"Harris has to have a trial and he has to be provided the best representation taxpayers' money can buy. That's what our Justice system requires. Then there will ...