On appeal from the Superior Court of New Jersey, Law Division, Ocean County.
Approved for Publication April 10, 1996. As Corrected April 26, 1996.
Before Judges Shebell, Stern and Wallace. The opinion of the court was delivered by Wallace, Jr., J.A.D.
The opinion of the court was delivered by: Wallace
The opinion of the court was delivered by WALLACE, JR., J.A.D.
The State appeals from the dismissal of a 1995 indictment for a 1978 felony murder. A prior indictment returned in 1994 had been dismissed in March 1995. Shortly thereafter, the case was again presented to the grand jury and defendant was indicted for murder in violation of N.J.S.A. 2A:113-1. Defendant moved to dismiss the indictment for prosecutorial misconduct in failing to notify the Assignment Judge of purported evidence of bias or prejudice on the part of two grand jurors. The Judge granted the motion and this appeal followed. We affirm.
The State contends in its brief on appeal that:
BEFORE AN INDICTMENT CAN BE DISMISSED, THE EXISTENCE OF PARTIALITY OR BIAS MUST BE DEMONSTRATED. THE INSTANT CASE DOES NOT MEET THE REQUIRED THRESHOLD TO TRIGGER THE COURT'S SCRUTINY UNDER STATE V. MURPHY OR R. 3:6-3(a).
When the grand jury was installed by the assignment Judge, the admonition was given that in the event a juror was not sure whether his or her knowledge or involvement might affect his or her ability to fairly decide the case, that the juror should "ask me, through your foreperson, for advice as to what action is appropriate." Prior to presenting any testimony in this case the prosecutor asked the grand jurors about their knowledge of any of the individuals involved, as follows:
PROSECUTOR: Before I had asked if anybody had known of the people I mentioned. Let me add a few more names. I had mentioned Mike Mohel of our office. I had mentioned George Shigo of the CIU Department. There were a number of police officers from Manchester who were involved, who will not be testifying, who worked in the Department back then. Does anyone know any Manchester police officers?
A GRAND JUROR: I know one, Chief Payne. *fn1
PROSECUTOR: He was not involved. So other than that response, no one knows any members of the Manchester Police Department.
THE FOREMAN: I know Mike Mohel's father very well.
PROSECUTOR: Let's step outside a minute with ...