On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 02-12-00850-I.
The opinion of the court was delivered by: Fisher, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing, Payne and C.S. Fisher.
In this appeal, we conclude that defendant was deprived of a fair trial because his counsel was required to utilize eight of his ten peremptory challenges prior to the trial judge determining whether any of the seated prospective jurors had a hardship that would have prevented them from serving. Once that question was posed, five of the fourteen satisfactory jurors were excused for hardship reasons, and defendant quickly exhausted his few remaining peremptory challenges during the process of selecting their replacements. Because the trial judge's bifurcated voir dire damaged the integrity of the jury selection process in this case, we reverse and remand for a new trial.
The grand jury returned Indictment No. 02-12-00850,*fn1 charging defendant with one count of second-degree possession of a weapon for an unlawful purpose, in violation of N.J.S.A. 2C:39-4(a), one count of third-degree unlawful possession of a handgun, in violation of N.J.S.A. 2C:39-5(b), one count of third-degree criminal mischief, in violation of N.J.S.A. 2C:17-3(a), and two counts of fourth-degree criminal mischief, in violation of N.J.S.A. 2C:17-3(a). A trial took place on September 29 and 30, and October 1, 7, 8 and 9, 2003. At its conclusion, the jury found defendant guilty of the first four counts of the indictment. The fifth count was dismissed by the trial judge for lack of evidence. The trial judge also denied defendant's motion that sought a judgment of acquittal or a new trial. Defendant was sentenced to a term of imprisonment of seven years, with a three-year period of parole ineligibility. Mandatory fees and assessments were also imposed.
Defendant appealed, asserting the following arguments:
I. THE JURY SELECTION PROCEDURES EMPLOYED BY THE TRIAL COURT DENIED DEFENDANT A FAIR TRIAL.
II. THE STATE'S BALLISTICS EXPERT SHOULD NOT HAVE BEEN PERMITTED TO RENDER AN OPINION THAT A PROJECTILE FOUND AT THE RESTAURANT WAS FIRED FROM THE REVOLVER FOUND NEAR DEFENDANT'S PLACE OF BUSINESS BECAUSE HE UTILIZED NO STANDARDS IN RENDERING HIS OPINION.
III. THE TRIAL COURT IMPROPERLY PERMITTED THE INTRODUCTION OF CHARACTER EVIDENCE OF THE ACCUSED; ADDITIONALLY, THE TRIAL COURT SHOULD HAVE PERMITTED THE INTRODUCTION OF EXTRINSIC EVIDENCE TO IMPEACH THE CREDIBILITY OF MEGAN PETROVICZ [SIC] WITHOUT REBUTTAL BY THE STATE.
IV. THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE.
V. THE INDICTMENT SHOULD HAVE BEEN DISMISSED BECAUSE THE STATE DID NOT PRESENT EXCULPATORY BALLISTICS EVIDENCE TO THE GRAND JURY.
Because we agree that the trial judge erroneously conducted a bifurcated voir dire whereby he did not advise the jury panel of the trial schedule or ask whether that schedule would constitute a hardship on any of them until after defendant had used eight of his ten peremptory challenges, we conclude that defendant was deprived of a fair trial, and we reverse and remand for a new trial. As a result, we need not consider or decide the issues raised by defendant in Points II, III, IV and V.
An accused is constitutionally guaranteed the right to trial by an impartial jury by the Sixth and Fourteenth Amendments to the United States Constitution and Article I, paragraph 10 of our State Constitution. State v. Fortin, 178 N.J. 540, 575 (2004); State v. Williams, 113 N.J. 393, 409 (1988) (Williams II). The jury selection procedures adopted in this State, by statute and rule, are designed to pursue the goal of producing a jury in each case that is "as nearly impartial as the lot of humanity will admit." State v. Williams, 93 N.J. 39, 60 (1983) (Williams I).
Jury selection is "an integral part of the process to which every criminal defendant is entitled." State v. Singletary, 80 N.J. 55, 62 (1979); see also State v. W.A., __ N.J. __ (June 21, 2005) (slip opinion at 10); Williams II, 113 N.J. at 409; State v. Brunson, 101 N.J. 132, 138 (1985). The trial judge plays a critical "gatekeeping" role in this regard, State v. Tyler, 176 N.J. 171, 181 (2003), which has been described as vesting the trial judge with a "high responsibility," ibid., that includes taking "all appropriate measures to ensure the fair and proper administration of a criminal trial," Williams I, supra, 93 N.J. at 62.
One vital aspect of the trial judge's gatekeeping role is the obligation to conduct "a thorough voir dire," State v. Fortin, supra, 178 N.J. at 575, that "probe[s] the minds of the prospective jurors to ascertain whether they hold biases that would interfere with their ability to decide the case fairly and impartially," State v. Erazo, 126 N.J. 112, 129 (1991). While it has been said that the trial judge possesses "broad discretionary powers in conducting voir dire [that] 'will ordinarily not be disturbed on appeal,'" our Supreme Court has also indicated that it will not "hesitate to correct mistakes that undermine the very foundation of a fair trial -- the selection of an impartial jury." State v. Fortin, supra, 178 N.J. at 575 (quoting Williams II, supra, 113 N.J. at 410).
The proper selection of a jury that is as fair and impartial as our procedures permit starts with the random selection of citizens, N.J.S.A. 2B:23-2, whose knowledge and opinions are then probed through voir dire, N.J.S.A. 2B:23-10; R. 1:8-3. The jury's membership is further refined through the use of challenges for cause, as permitted by N.J.S.A. 2B:23-11; R. 1:8-3(b), and peremptory challenges, as permitted by N.J.S.A. 2B:23-13; R. 1:8-3(d). Voir dire is integral to the process of exercising the right to challenge, and must be designed to elicit responses from potential jurors from which the parties may intelligently exercise their rights to challenge jurors either for cause or peremptorily. State v. Dishon, 297 N.J. Super. 254, 271-73 (App. Div.), certif. denied, 149 N.J. 144 (1997).
Challenges for cause are based upon proof of legally cognizable grounds of a potential juror's partiality. Peremptory challenges, on the other hand, are something less precise -- something the essence of which represents an "undefinable frisson either of comfort or unease that passes from one person to another." State v. W.A., supra, __ N.J. at __ (slip opinion at 13); see also Pointer v. United States, 151 U.S. 396, 408, 14 S.Ct. 410, 414, 38 L.Ed. 208, 214 (1894); State v. Dishon, supra, 297 N.J. Super. at 272. Here, as more fully described later in this opinion, the parties were required to exercise peremptory challenges before they had learned whether the seated jurors would be able to remain for the duration of the trial without that service causing an undue hardship.
While it is true that the loss of a peremptory challenge has never been viewed either in the federal system or in this State as a constitutional deprivation, the right to use peremptory challenges is nevertheless a "substantial right," State v. Singletary, supra, 80 N.J. at 62; see also State v. W.A., supra, __ N.J. at __ (slip opinion at 14), with "historic roots," State v. Brunson, supra, 101 N.J. at 136.*fn2 As explained by the Court in State v. DiFrisco, 137 N.J. 434, 468 (1994) (quoting State v. Brunson, supra, 101 N.J. at 137-38, and Swain v. Alabama, 380 U.S. 202, 219, 85 S.Ct. 824, 835, 13 L.Ed. 2d 759, 772 (1965)), cert. denied, sub nom., DiFrisco v. New Jersey, 516 U.S. 1129, 116 S.Ct. 949, 133 L.Ed. 2d 873 (1996), the peremptory challenge is "a creature of statute designed 'to eliminate extremes of partiality on both sides, [and] to assure the parties that the jurors before whom they try the case will decide on the basis of the evidence placed before them and not otherwise.'" See also J.E.B. v. Alabama, 511 U.S. 127, 137 n.7, 114 S.Ct. 1419, 1426 n.7, 128 L.Ed. 2d 89, 102 n.7 (1994) ("Although peremptory challenges are valuable tools in jury trials, they 'are not constitutionally protected fundamental rights; rather they are but one state-created means to the constitutional end of an impartial jury and a fair trial.").
Having closely reviewed what occurred during the jury selection in this matter, hereafter expounded in detail, we conclude that the trial judge's voir dire was inadequate because it was bifurcated -- that is, the judge failed to inquire as to the panel's ability to sit for a trial that would extend into the following week until after calling upon counsel for the exercise of their peremptory challenges, thus significantly reducing defendant's statutory and rule-based allotment of those challenges.
At the commencement of the trial, the trial judge discussed with counsel the content of the voir dire. Toward the end of that hearing, the following occurred:
THE COURT: And . . . we're ready to send for the jury, counsel?
[DEFENSE COUNSEL]: Yes, sir.
[PROSECUTOR]: That's fine, Judge. I think maybe it's my fault we went off on a tangent when we got to the end of when how long you're going to tell them the trial is.
THE COURT: It looks like it's going into next week and that's all I can tell them.
[THE PROSECUTOR]: I don't see how that's avoidable.
THE COURT: And we'll see who has problems coming back next week. Send for the jury panel. [Emphasis added.]
Once the jury panel arrived, the trial judge read the indictment to them, identified the attorneys, the defendant, and the anticipated witnesses, and gave the usual instructions. Jury selection commenced with the seating of fourteen members of the panel in the box.
During the voir dire that followed, the trial judge agreed that a question to be posed to potential jurors -- concerning their feelings about marital infidelity -- would be asked at sidebar. Until that point, the potential jurors had not been advised of the length of the trial nor was inquiry made as to their availability for that length of time. During the sidebar examination about marital infidelity, a few jurors were told about the length of the trial but only when the juror specifically asked. For example, one potential juror expressed concerns about taking time off from work:
JUROR: I just lost my father a month ago and he was very sick for a long time and I took care of him. My job changed, I just took months off, I just went back. My job changed as of last week. I'm an Executor of his will, so I have a ton of stuff going on and I'm really not holding straight.
THE COURT: [Y]ou think this is going to . . . [a]ffect your job?
JUROR: No, it's just an array of everything that's going on in my life right now. I'm overwhelmed, you know, it was a long illness.
THE COURT: It looks like we're going to try this case today, tomorrow and Wednesday, Thursday and Friday you have on your own. Monday you'll have on your own, and [we will] bring the case back on Tuesday. Given the burdens you have, given the scheduling, do you think it's something you can manage knowing that?
JUROR: I'll try, I'll try.
Eventually, this potential juror was excused. But the fact that this discussion occurred did not prompt the trial judge to then advise the entire panel of the trial schedule or question whether the length of the trial would cause a ...