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State v. Fortin2/3/2004
ating factor exists but one juror did not find that the aggravating factor exists, no juror shall consider that aggravating factor in his or her deliberations.
[Judges Bench Manual for Capital Causes, Appendix J-34 (Oct. 22, 2002) (emphasis added).]
The trial court in this case did not have the benefit of our holdings in Nelson II and Koskovich or the amended Model Jury Charge. We trust that trial courts in all future penalty phase proceedings will follow the Model Jury Charge.
IX. Voir Dire
During the jury selection process in the penalty phase, defendant moved to dismiss M.T. for cause on the basis of that juror's limited involvement with Melissa Padilla's children. At the time of the murder, M.T. was friendly with the Padilla children's babysitter, Jasmine. M.T. had seen the Padilla children four or five times, and on one of those occasions, when Jasmine was baby-sitting, M.T. was present with the children for three or four hours. M.T. learned of Padilla's murder from Jasmine. She lost touch with Jasmine after the murder and, by the time of her jury service, had not seen her or the Padilla children for five or six years. M.T. had never met Padilla or been to her home, and could not recall the children's names or Jasmine's last name. She expressed her sympathy for the children who "wouldn't grow up with a mother." In light of M.T.'s assurances that she was capable of remaining fair and impartial, the court rejected defendant's challenge for cause, finding no "reason particularly to disqualify [M.T.]."
Defendant contends that the trial court abused its discretion under Rule 1:8-3(d) by refusing to grant him one extra peremptory challenge to remove M.T. We need not decide the issue because we are remanding for a new trial. Trial courts generally are given wide discretion to make voir dire decisions based on their first-hand opportunity to observe prospective jurors; they are in the best position to make judgments about a juror's ability to be fair and dispassionate. However, we have serious misgivings about leaving a juror on the panel with a connection to the victim's family in a capital case and, therefore, we offer some observations for future guidance.
As in the guilt phase, the court used a struck jury system, in which peremptory challenges were made only after a sufficient number of potential jurors had been qualified. The selection of the fifteen-member-jury began with a pool of forty-seven pre qualified panelists. Twenty peremptory challenges were allotted to defendant, and twelve to the State. See R. 1:8-3(d).
Defendant exercised two peremptory challenges before M.T. was called to the jury box, and another seventeen after M.T. was qualified as a juror. When each party had one peremptory challenge remaining, M.T. was still in the box, and only two of the forty-seven qualified panelists remained in the selection pool. At that point, defendant requested an extra peremptory challenge to remove M.T. See R. 1:8-3(d).
It is difficult to discern from the cold record why defendant chose not to exercise a peremptory challenge to remove M.T. earlier in the jury selection process. Presumably, he believed those jurors he removed by peremptory challenge were more likely than M.T. to return a death verdict. In any event, the trial court denied defendant the extra peremptory challenge. The court expressed concern that there were only two pre qualified panelists remaining for selection, with both the prosecution and defense holding one remaining peremptory challenge apiece. The court clearly was disinclined to pre qualify any more prospective jurors, and the granting of an additional challenge might have required it to d
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