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State v. Biegenwald3/5/1987
e asserted at side bar particularly in capital cases. The minimal inconvenience and delay entailed by this procedure are clearly offset by the undesirability of a prospective juror knowing that his presence on the jury is objectionable to one party. In this case, however, the ruling to which defendant objects had a minimal impact on the jury selection process and appears to be confined to one juror, later challenged peremptorily by defendant. Under the circumstances, we do not find that the trial court's ruling had the capacity to deprive defendant of a fair trial.
2. Counsel Voir Dire Participation
Defendant contends that the trial court's refusal to permit defense counsel to interrogate the jury during voir dire was
prejudicial error. He argues that neither our decision in State v. Manley, 54 N.J. 259 (1969), nor Rule 1:8-3(a) should be construed to prohibit attorney-conducted voir dire in capital cases.
In State v. Manley, supra, 54 N.J. 259, defendant was indicted for first-degree murder. On appeal from his conviction for second-degree murder, defense counsel claimed trial error because of the trial court's refusal to permit him to propound questions during jury voir dire concerning defendant's prior criminal conviction. In sustaining the conviction, this Court announced its adoption of the predecessor of Rule 1:8-3(a), which was intended to return control of jury voir dire to the trial court and vest in the trial court discretion to permit or restrict supplemental questioning by counsel. Id. at 281-83. Justice Francis, writing for a unanimous Court, expressed in no uncertain terms the reason for the new rule:
In many instances it has taken as long or longer to empanel a jury as to try the case. The impression is inescapable that the aim of counsel is no longer exclusion of unfit or partial or biased jurors. It has become the selection of a jury as favorable to the party's point of view as indoctrination through the medium of questions on assumed facts and rules of law can accomplish.
[ Id. at 281 (emphasis in original).]
In Manley, supra, 54 N.J. at 283, we modified our holding in State v. Sullivan, 43 N.J. 209, 239-40 (1964), cert. den., 382 U.S. 990, 86 S. Ct. 564, 15 L. Ed. 2d 477 (1966), a death penalty case that had permitted more voir dire examination by counsel. The compelling policy reasons for court-controlled voir dire, the Manley opinion's "call[ ] for a much more guarded discretion than previously announced in State v. Sullivan, supra, 43 N.J. 239-40," 54 N.J. at 283, a capital case, and the text of Rule
1:8-3(a) persuade us that the holding in Manley was intended to apply, and should apply, in death penalty cases. We note also that the Appellate Division has expressly considered and rejected the contention that State v. Manley, supra, 54 N.J. 259, is inapplicable to capital cases. State v. Howard, 192 N.J. Super. 571 (1983).
Our present Court rule is intended to see that voir dire is conducted to the extent reasonably possible by the court. The trial court is given discretion to permit counsel to supplement the court's interrogation of jurors by submitting questions to the court and, where the court approves, by additional personal questioning by counsel. See R. 1:8-3(a); Manley, supra, 54 N.J. at 282-83. In this case, following the customary practice, the trial court required counsel to submit to it
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