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State v. Biegenwald3/5/1987
can lay aside his impression or opinion and render a verdict based on the evidence' presented in court will extraneous exposure to the facts of the case not be grounds for automatic disqualification." Id. (quoting State v. Sugar, supra, 84 N.J. at 23, and Dobbert v. Florida, 432 U.S. 282, 97 S. Ct. 2290, 53 L. Ed. 2d 344 (1977)).
In my opinion, error was inherent in the trial court's refusal to excuse these nine jurors for cause. As already recounted, Ms. Hugo, a juror, knew defendant was implicated in other murders. In addition, the other eight prospective jurors -- who shared Ms. Hugo's knowledge -- sat with some of the actual jurors in the jury room for varying periods of time before being excused. Jurors knew about the defendant's prior murder conviction and that he was connected with or accused of several recent murders other than that for which he was being tried. This strongly suggests that inadmissible information may have come to the attention of the defendant's jury, serving to consciously or unconsciously influence the prospective jurors toward either the guilty verdict, the death penalty or both. Under these circumstances, there is an extremely strong likelihood, grounded in human experience, that such jurors would be prejudiced despite their sincere belief in their own impartiality.
See Irvin v. Dowd, supra, 366 U.S. 717, 81 S. Ct. 1639, 6 L. Ed. 2d 751.
As a result of the trial court's erroneous failure to excuse jurors for cause, defendant was required to use peremptory challenges to remove jurors. All of defendant's peremptory challenges were exhausted. By forcing defendant to use his peremptory challenges to excise the effects of prejudicial publicity from the jury, the trial court denied defendant his full complement of peremptory challenges. It is practically axiomatic that the denial of a peremptory challenge is the denial of a substantive right. See State v. Singletary, supra, 80 N.J. at 62-63.
Moreover, in a capital murder prosecution, the loss or diminution of this right is more significant than in an ordinary criminal trial. The Court may suffer the reduced right in an ordinary case, e.g., State v. Singletary, supra; it should not countenance it when a defendant's life is at stake.
Finally, as related to the deficiencies of the voir dire, defendant contends that the trial court improperly denied his requests to hear challenges for cause, due to exposure to pretrial publicity, out of the hearing of the prospective juror who was being challenged. Defendant asserts that the act of openly challenging a juror's claim of impartiality prejudiced the juror against the defendant.
I do not consider this a picayune or captious complaint. When the seventh prospective juror, Mr. Cross, was questioned, he said he would be impartial although he had read prejudicial news stories. The court refused to ask defense counsel's follow-up questions or to allow him to challenge the juror at side-bar. Defense counsel then challenged the juror for cause, in his presence, which challenge was denied. Two more jurors, the fourteenth and fifteenth, Mr. Allocco and Ms. Herron, posed similar problems. Defense counsel requested that he be allowed to state his reasons for challenge on the record at side bar, out of the hearing or presence of the jurors. The requests were denied, as were the subsequent challenges for cause. Defense counsel then moved for a mistrial based on the alleged improper ruling on the cause challenge, as well as the asserted prejudicial effect of challenges made before the jurors. The trial cour
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