State v. Dunne , 124 N.J. 303 ( 1991 )

The opinion of the Court was delivered by

O’HERN, Justice.

A jury has convicted defendant of a bizarre murder that occurred in the South Mountain Reservation in 1986. The principal ground of appeal before us is that defendant was improperly denied the right to have the charges tried by a judge and not a jury. We hold that there is no unilateral right to a non-jury trial in such circumstances and that the trial court did not abuse its discretion in determining that the issues were properly to be decided by a jury.

I

On the morning of May 11, 1986, a security guard at Saint Barnabas Hospital in Livingston observed a car on the curb outside the hospital entrance. The driver’s door was ajar. A man, in obvious pain and bleeding from the chest, was sitting in the driver’s seat. He was a resident physician at the hospital. There was blood inside the car. The dying man brought to the guard’s attention a license plate number that he had written on an index card that was on the passenger’s seat. Despite extensive surgery in an attempt to save his life, he bled to death from a stab wound to his heart by early afternoon of that day.

On the basis of the index card, the police determined that the license plate belonged to a car that had been rented by defendant, a resident of 23 Quarry Terrace in West Orange. The rented car was observed parked in front of that address. The police also received a call from defendant’s cousin, informing them that defendant had told him that he might have stabbed someone. The police went to 23 Quarry Terrace and spoke with defendant’s cousin, who told them defendant was inside the house. In response to a request from the police, defendant’s cousin brought defendant outside. After arresting defendant, the police entered the house and found a knife on the coffee table. Because the crime had occurred at the South Mountain Reservation, within the jurisdiction of the Essex County Police, the police transported defendant to the Essex County Police Headquarters in Newark, accompanied by his father. When the police informed them that the victim had died, defendant and his father started to cry. Defendant confessed that earlier that morning he had ventured upon the victim in the Reservation, and had stabbed him.

Defendant anticipated raising an insanity defense at trial that would require testimony on the abnormal homosexual fantasies that may have moved defendant to attack the victim. Fearing adverse jury reaction to that defense, defendant made a pretrial motion for a non-jury trial. The trial court denied that motion. At trial, defendant raised the insanity defense, having indicated to his testifying physician that he had heard vague and indistinct voices telling him to “do it.” The doctor testified that defendant suffered from paranoid schizophrenia. In the opinion of the doctor, defendant, on the morning of May 11, 1986, became acutely psychotic and lost touch with reality. For unexplained reasons, defendant’s persistent fantasies of homosexual gratification and aggression blended with reality, resulting in the attack. The doctor believed that defendant did not know that what he was doing was wrong.

The jury convicted defendant of murder. During deliberations the jury requested two read-backs of the psychiatric testimony offered by defendant, and asked the court for the legal definition of insanity. The jury also asked if it could return a verdict with a recommendation and if defendant would receive proper treatment and medication without regard to its verdict. Following the conviction, the court sentenced defendant to thirty years’ imprisonment. The Appellate Division affirmed the conviction, and we granted defendant’s petition for certification. 117 N.J. 638, 569 A.2d 1338 (1989).

II

As noted, the principal point raised in defendant’s appeal is that the trial court erred in denying defendant’s motion for a bench trial. That argument actually has two aspects: (a) whether defendant was entitled to a bench trial as a matter of right, or (b) whether the trial court abused its discretion in not granting a bench trial.

Defendant based his request for a non-jury trial on two grounds. First, defendant suggested that the jury would be prejudiced against him by the psychiatric testimony that was to be presented on the defense of insanity. He submitted that the jury “when encountering a really terrible killing which occurred in a public place for no apparent reason * * * may well feel that letting Mr. Dunne off on psychiatric grounds is not adequate, is dangerous, is risky, and goes against their moral beliefs.” Second, he argued that because the defense would be presenting medical evidence that would reveal that defendant had violent and abnormal homosexual fantasies, the jury’s evaluation of the testimony on the insanity defense would become tainted and biased against him.

Defendant argued that a jury waiver was appropriate because the court would be in a better position to evaluate the psychiatric testimony and the insanity defense without any of the anticipated biases of the jury. The trial court denied the motion to waive the jury, ruling that “this is the kind of case that is appropriate to have the community decide the case, that the community should be the one that should obtain in a case of this nature. I see no compelling reasons why the case should go non-jury.” The court further noted that the proposed jury voir dire would sufficiently screen out jurors who would be prejudiced against defendant.

We deal first with the question of whether defendant had a unilateral or absolute right to demand a non-jury trial, and then with the question of whether the trial court abused its discretion in not granting a non-jury trial.

A.

Over sixty years ago, in Patton v. United States, 281 U.S. 276, 50 S.Ct. 253, 74 L.Ed. 854 (1930), Justice Sutherland set forth the guiding principles that dictate the disposition of this case. In Patton, a defendant in a prohibition bribery trial had consented in open court that his trial should continue with only eleven jurors, following the removal of one juror who had become seriously ill. The eleven remaining jurors found him guilty. On appeal, the defendant challenged the jurisdiction of the District Court to conduct a trial with only eleven jurors, even with the consent of the defendant. The Court reviewed all of the outstanding precedent that would give light to an understanding of the constitutional right of a defendant to demand trial by jury under article III, section 2, clause 3, and the sixth amendment of the United States Constitution. In light of the provisions’ history, the Court concluded that “it is reasonable to conclude that the framers of the Constitution simply were intent upon preserving the right of trial by jury primarily for the protection of the accused.” Id. at 297, 50 S.Ct. at 257-58, 74 L.Ed. at 862. The Court did not believe that the framers intended to establish the jury in criminal trials as an “integral and inseparable part of the court.” Ibid. It thus concluded that “article III, § 2, is not jurisdictional, but was meant to confer a right upon the accused which he may forego at his election. To deny his power to do so is to convert a privilege into an imperative requirement.” Id. at 298, 50 S.Ct. at 258, 74 L.Ed. at 863.

The Court next considered whether a court should deny a defendant’s power to waive a trial by jury in criminal cases on grounds of public policy. The Court concluded that because a defendant indeed had the right to waive the trial itself by pleading guilty to the charges, it would not be contrary to public policy to permit the lesser event, that is, the submission to trial by fewer than twelve jurors or by a judge.

The Court set forth principles that remain of enduring guidance.

In affirming the power of the defendant in any criminal case to waive a trial by a constitutional jury and submit to trial by a jury of less than twelve persons, or by the court, we do not mean to hold that the waiver must be put into effect at all events. That, perhaps, sufficiently appears already. Trial by jury is the normal and, with occasional exceptions, the preferable mode of disposing of issues of fact in criminal cases above the grade of petty offenses. In such cases the value and appropriateness of jury trial have been established by long experience, and are not now to be denied. Not only must the right of the accused to a trial by a constitutional jury be jealously preserved, but the maintenance of the jury as a factfinding body in criminal cases is of such importance and has such a place in our traditions, that, before any waiver can become effective, the consent of government counsel and the sanction of the court must be had, in addition to the express and intelligent consent of the defendant. And the duty of the trial court in that regard is not to be discharged as a mere matter of rote, but with sound and advised discretion, with an eye to avoid unreasonable or undue departures from the mode of trial or from any of the essential elements thereof, and with a caution increasing in degree as the offenses dealt with increase in gravity. [Id. at 312-13, 50 S.Ct. at 263, 74 L.Ed. at 870.]

Consistent with those principles, Rule 23(a) of the later enacted Federal Rules of Criminal Procedure provides that “[cjases required to be tried by jury shall be so tried unless the defendant waives a jury trial in writing with the approval of the court and the consent of the government.”

In Singer v. United States, 380 U.S. 24, 25, 85 S.Ct. 783, 784, 13 L.Ed.2d 630, 632 (1965), the defendant challenged the constitutionality of Rule 23(a), arguing that the United States Constitution “gives a defendant in a federal criminal case the right to waive a jury trial whenever he believes such action to be in his best interest, regardless of whether the prosecution and the court are willing to acquiesce in the waiver.” Singer was charged with mail fraud. He offered to waive a jury in order to shorten the trial. Even though the trial court was willing to approve the waiver, the prosecution refused to consent. After reviewing English and American history surrounding the waiver of a jury trial, the Supreme Court concluded:

A defendant’s only constitutional right concerning the method of trial is to an impartial trial by jury. We find no constitutional impediment to conditioning a waiver of this right on the consent of the prosecuting attorney and the trial judge when, if either refuses to consent, the result is simply that the defendant is subject to an impartial trial by jury — the very thing that the Constitution guarantees him. [Id. at 36, 85 S.Ct. at 790, 13 L.Ed.2d at 638.]

Limiting its decision to the facts, however, the Singer court suggested an exception to the rule by pointing out that because the petitioner had requested the waiver only to save court time, it need not determine

whether there might be some circumstances where a defendant’s reasons for wanting to be tried by a judge alone are so compelling that the Government’s insistence on trial by jury would result in the denial to a defendant of an impartial trial. [Id. at 37, 85 S.Ct. at 791, 13 L.Ed.2d at 639.]

Absent proof of such special circumstances, federal constitutional doctrine remains the same, that there is no federal constitutional right to trial by a judge alone.

The question arises, then, whether we should interpret our New Jersey constitutional provision for trial by jury in any significantly-different manner. See N.J. Const. of 1947 art. I, §§ 9, 10. We are unable to find any significant constitutional preference in New Jersey’s history or tradition for a different result. Cf. State v. Hempele, 120 N.J. 182, 576 A.2d 793 (1990) (decidedly higher notions of personal privacy warrant different rule in New Jersey for protection of waste disposal from those prevailing elsewhere). New Jersey’s consistent tradition has been that every right and privilege secured by our State Constitution belongs to each citizen, “as a personal right.” State v. Stevens, 84 N.J.L. 561, 563, 87 A. 118 (Sup.Ct.1913). That tradition includes, specifically, the guarantee that “the accused shall have the right to a speedy and public trial by an impartial jury,” N.J. Const, of 1947 art. I, § 10, and “so far as [the] right to a trial by jury is concerned, [a defendant] may waive it.” State v. Stevens, supra, 84 N.J.L. at 563, 87 A. 118. Our courts found, as did the United States Supreme Court, that there is no constitutional impediment to the exercise of jurisdiction to try criminal causes without a jury. In Edwards v. State, 45 N.J.L. 419 (Sup.Ct.1883), the defendant contended that the Legislature did not have the capacity under the Constitution to provide for non-jury trial of certain limited or petty offenses. The Edwards Court invoked the same rationale as did the United States Supreme Court in Patton v. United States, supra, 281 U.S. 276, 50 S.Ct. 253, 74 L.Ed. 854, noting that .those constitutional rights were personal to the defendant and could be waived. In short, nothing in New Jersey’s history or tradition suggests any implied correlative right on the part of a defendant to demand trial by a judge and not by jury.

B.

The remaining question is whether the trial court abused its discretion in denying defendant’s request for a non-jury trial.

Rule l:8-l(a) is the provision in our Rules that deals with non-jury trials in criminal cases. Like the federal rule, our state Rule mandates that the defendant must first obtain the approval of the trial court in order to waive the right to a jury trial. Our Rule differs from the federal rule in that except in capital cases pursuant to N.J.S.A. 2C:11-3c(1), our Rule does not require the approval of the prosecutor; it merely requires notice to the prosecutor that the defendant has waived the right. See State v. Davidson, 225 N.J.Super. 1, 541 A.2d 700 (App.Div.1988).

The 1969 Revision of our Rules changed criminal practice by eliminating the State’s consent as a prerequisite to the defendant’s waiver of a jury trial. The history of the Rule has been well summarized in the 1991 edition of Rules Governing the Courts of the State of New Jersey. Judge Pressler notes that the Criminal Practice Committee was expressly aware that the constitutionality of the analogous federal Rule 23(a), requiring the government’s consent as well as the consent of the court and the defendant, was sustained by Singer v. United States, supra, 380 U.S. 24, 85 S.Ct. 783, 13 L.Ed.2d 630. Pressler, Current N.J. Court Rules, Comment on R. 1:8-1 at 70 (1991).

One court has interpreted the 1969 deletion of the requirement of prosecutorial consent as, in effect, creating a constitutional preference for non-jury trial, at least when one is requested by a defendant. State v. Fiorilla, 226 N.J.Super. 81, 543 A.2d 958 (App.Div.1988). In Fiorilla, the defendants were accused of various Medicaid-fraud charges relating to their operation of nursing homes. The defendants moved for a waiver of jury trial, citing extensive pretrial publicity and the likely length and complexity of the trial. Concerned about the public’s expectation of trial by jury, the trial court denied the defendants’ motion. Reversing the trial court’s decision, the Appellate Division held that “the trial judge erroneously failed to consider the substantial good-faith reasons advanced in support of waiver in exercising his discretion to preclude bench trial solely because of his perception of public expectation.” Id. at 93, 543 A.2d 958.

The Appellate Division found that although the defendants did not have a constitutional right to waive jury trial, a trial court should not deny the defendants’ waiver unless “sufficient reasons exist.” Id. at 90, 543 A.2d 958. In an effort to give guidance to trial courts, the Fiorilla court set out a three-pronged test for determining when a court should deny the defendant’s request for jury waiver:

(1) a defendant has not voluntarily, knowingly and competently waived his constitutional right to jury trial with advice of counsel; or that,

(2) the waiver is not tendered in good faith, but as a stratagem to procure an otherwise impermissible procedural advantage; or that,

(3) consequential, overriding, demonstrable and articulated reasons exist to require a jury trial [that] outweigh the reasons and record provided by the defendant in support of waiver. [Id. at 92, 543 A.2d 958.]

In its analysis of Rule l:8-l(a), the Fiorilla court concluded that “deletion of the requirement for consent by the prosecutor must be read to suggest some recognition of the ‘privilege’ theory of jury trial enunciated by the early New Jersey decisions and in Patton, supra.” Id. 226 N.J.Super. at 90, 543 A.2d 958. We are unable, however, to discern in the early New Jersey recognition of the “privilege” theory the creation of any correlative superior right to a non-jury trial. Chief Justice Warren convincingly demonstrated in Singer v. United States, supra, 380 U.S. 24, 85 S.Ct. 783, 13 L.Ed.2d 630, that the ability to waive a constitutional right does not ordinarily carry with it the right to insist on the opposite of that right. For example, although able to waive the right to a public trial, a defendant cannot compel a private trial. Although able to waive the right to be confronted by witnesses, a defendant can never compel the government to try the case by stipulation.

Thus, although we agree with the premise of the Fiorilla court that the denial of a request for a non-jury trial cannot be a reflexive reaction and must be based on “an exercise of discretion by the trial court based on its consideration of the circumstances of the case,” neither the Constitution nor the Rules of the Court tilt in favor of a non-jury trial. State v. Fiorilla, supra, 226 N.J.Super. at 88, 543 A.2d 958. Rather, we believe that the more serious the crime, the greater the “gravity” of the offense, Patton v. United States, supra, 281 U.S. at 313, 50 S.Ct. at 263, 74 L.Ed. at 870, the greater the burden on the defendant to show why there should be a non-jury trial.

Hence, the third prong of Fiorilla goes too far. In major crime litigation, to consider public confidence in the jury process as a relevant factor in the balance can never be deemed inconsequential. That has been clear since Patton, supra, which emphasized that when deciding on a defendant’s waiver of a jury trial, courts should show a “caution increasing in degree as the offenses dealt with increase in gravity.” 281 U.S. at 313, 50 S.Ct. at 263, 74 L.Ed. at 870. In exercising that discretion, a court must consider the competing factors that argue for or against jury trial.

One of the most important factors to consider is the judiciary’s obligation “to legitimately preserve public confidence” in the administration of justice. In re Edward S., 118 N.J. 118, 148, 570 A.2d 917 (1990). “There is probably no determination that causes more concern and doubt in the minds of the public about the fair and sound operation of our criminal laws than a jury verdict of not guilty by reason of insanity in a murder case.” Id. at 138, 570 A.2d 917.

Because it is best to discuss such issues in concrete terms, we may take guidance from the Second Circuit’s decision in United States v. Moon, 718 F.2d 1210 (1983), cert. denied, 466 U.S. 971, 104 S.Ct. 2344, 80 L.Ed.2d 818 (1984). In that case the Reverend Sun Myung Moon contended that widespread public hostility against him prejudiced his right to a fair trial and required trial by judge. The government countered that there was “an overriding public interest in the appearance as well as the fact of a fair trial, which could be achieved only by a jury.” Id. at 1217. The government insisted that, especially because of this challenge to the fairness of the proceedings, “employing this normal and preferable mode of disposing of fact issues in a criminal trial” would engender confidence in the outcome. Ibid. The Second Circuit agreed. Public confidence in a criminal verdict is best sustained by a jury finding. And when we speak of the appearance of justice, we are not trying to avoid judicial responsibility to ensure the actuality of justice. We always expect judges to be made of sterner stuff, “able to thrive in a hardy climate,” and never to fear public clamor over any decision. Craig v. Harney, 331 U.S. 367, 376, 67 S.Ct. 1249, 1255, 91 L.Ed. 1546, 1552 (1947). Our judges have no fear of tough decisions. In fact, the underlying criminal trial in In re Edward S., supra, was a bench trial. 118 N.J. at 121, 570 A.2d 917. Even in capital cases, judges have accepted jury waivers. See State v. Di Frisco, 118 N.J. 253, 571 A.2d 914 (1990). We rather suspect that in many cases waiver requests are routinely granted.

A court must always ensure, however, that denying a defendant’s request for non-jury trial never denies the defendant a fair trial. See Singer v. United States, supra, 380 U.S. at 37, 85 S.Ct. at 791, 13 L.Ed.2d at 639. But the validity of a claim of unfairness is better shown after voir dire of prospective jurors. The trial court in the Moon case, as did the trial court in this case, “wisely recogniz[ed] that this was a safer avenue to follow in order to ascertain whether a fair jury could be obtained [and] properly reserved until after the voir dire” its option to order a trial by jury. 718 F.2d at 1218. In this case, the trial court formulated questionnaires, after consultation with counsel, to be submitted to the jury in the voir dire process. Jurors must have reassured the court that they could follow the law because defendant did not renew his motion for a non-jury trial after the jury-selection process.

To sum up, trial by jury is fundamental to the American system of criminal justice. A defendant may waive the right to trial by jury and instead be tried by the court. However, a defendant does not have a constitutional right to waive a jury trial and insist on a bench trial. Trial by jury is the “normal and, with occasional exceptions, the preferable mode of disposing of issues of fact” in major criminal cases. Patton v. United States, supra, 281 U.S. at 312, 50 S.Ct. at 263, 74 L.Ed. at 870. Courts should be sensitive to special circumstances that might hinder the fair trial rights of a defendant. With the change that we have made to the third prong of the Fiorilla test, we believe that it is better stated that when reviewing a request to waive a jury trial, a court should:

(1) determine whether a defendant has voluntarily, knowingly, and competently waived the constitutional right to jury trial with advice of counsel;

(2) determine whether the waiver is tendered in good faith or as a stratagem to procure an otherwise impermissible advantage; and

(3) determine, with an accompanying statement of reasons, whether, considering all relevant factors, including those listed below, it should grant or deny the defendant’s request in the circumstances of the case.

Although there is no “judicial calculus that unerringly resolves each case,” State v. R.G.D., 108 N.J. 1, 12, 527 A.2d 834 (1987), the “evidential axis” that we described in R.G.D. provides a useful analogy. At one end of the scale, tilting in favor of jury trial, will be the gravity of the crime. The higher the degree of the crime, the greater the weight given to that factor. Other factors that will tip the scale will be the position of the State, the anticipated duration and complexity of the State’s presentation of the evidence, the amenability of the issues to jury resolution, the existence of a highly-charged emotional atmosphere (this may work both ways as in Moon, supra, 718 F.2d 1210), the presence of particularly-technical matters that are interwoven with fact, and the anticipated need for numerous rulings on the admissibility or inadmissibility of evidence. The sources of principled decision-making will remain rooted in a statement of reasons that will accompany the decision. This statement of reasons will give structure to the trial court’s discretionary judgment and will soundly guide appellate review. State v. Roth, 95 N.J. 334, 363-64, 471 A.2d 370 (1984).

Despite this, the dissent faults us for vesting in trial courts a discretion that is “totally unfettered and unguided.” Post at 337, 590 A.2d at 1161. Yet we have set forth specific factors to guide trial courts that are not dissimilar to those employed by those courts in other discretionary determinations. See State in the Interest of C.A.H., 89 N.J. 326, 346, 446 A.2d 93 (1982) (“The waiver decision [from juvenile court to adult court for trial by jury] is a highly discretionary one and calls for fine judgment.”). Here, as there, we repose the greatest confidence in the ability of trial judges to exercise sound discretion.

And, although stating that a defendant “should, in most circumstances, be permitted to waive a jury trial,” post at 337, 590 A.2d at 1161, our dissenting members ultimately fashion a rule that provides no such right and sets forth no such standards. They fashion a rule that, like ours, must rest in the sound discretion of the trial court. The dissent’s formulation of the third prong of Fiorilla is that a waiver request should not be denied unless “the trial judge has determined that * * * there are articulable reasons why, in the context of the case and the surrounding circumstances, a jury is inherently better able to hear the case than a judge, and those reasons outweigh the defendant’s reasons for waiving a jury trial.” Post at 337, 590 A.2d at 1161. Despite the shift in burden and emphasis, unless the dissent is to forbid a trial court to consider the intrinsic value of trial by jury, there is nothing in its formulation that would lead to a grant of waiver “in most circumstances.”

That intrinsic value of trial by jury has earned public confidence over time. We need only recall Chief Justice Warren in Singer: “ ‘[T]he maintenance of the jury as a fact finding body in criminal cases is of such importance and has such a place in our traditions’ ” that, under federal law, a defendant may not unilaterally insist on a trial before a judge alone. 380 U.S. at 34, 85 S.Ct. at 789, 13 L.Ed.2d at 637 (quoting United States v. Patton, supra, 281 U.S. at 312, 50 S.Ct. at 263, 74 L.Ed. at 870). “[I]ts intrinsic fairness as contrasted with older modes” has made jury trial “the one regular common-law mode of trial, always to be had when no other was fixed.” Id. at 28, 85 S. Ct. at 786, 13 L.Ed.2d at 634 (quoting Thayer, A Preliminary Treatise on Evidence at the Common Law 60 (1898)). Thus, through trial by jury, “in most circumstances” justice can be done. A fair trial is afforded to the accused, and public confidence in the criminal justice system is preserved.

We would never deprive the defendant of a fair trial in order to maintain public confidence, and on those occasions when fairness requires a waiver, obviously it must be granted. Having said that, we must never forget, as we have stated so often, the importance of maintaining the public’s confidence in our criminal-justice system. Trial by jury, for reasons rooted in our history and tradition, is one of the foundations of that confidence. It is a foundation not simply because of trust in the common man, trust in the verdict of one’s peers, but because it has proven itself as the best vehicle for attaining justice. We surrender to no clamor when we protect trial by jury; we simply accept the wisdom of the ages and benefit from the experience of thousands of judges over hundreds of years who continue to marvel at the consistent soundness of jury verdicts.

Ill

The Appellate Division correctly decided the remaining issues. We are satisfied, as was the Appellate Division, that the trial was fair and that the jury was not biased against defendant because of the theory or facts of his defense. During the jury voir dire, the trial court allowed frank inquiry of the potential jurors about their attitudes towards the insanity defense in the circumstances of this case. See State v. Moore, 122 N.J. 420, 585 A.2d 864 (1991) (use of questionnaires will help to elicit jury predispositions). The jury deliberated for six days. It asked that the insanity defense be redefined and it twice had portions of the defense psychiatrist’s testimony read back to it. Even though that testimony was essentially uncontroverted, the jury was not bound to accept it. The jury’s verdict was thus not against the weight of the evidence. The sentence of thirty years without parole was required for murder under N.J.S.A. 2C:ll-3 and does not constitute a cruel and unusual imprisonment disproportionate to the offense of murder. State v. [Nathaniel] Johnson, 206 N.J.Super. 341, 502 A.2d 1149 (App.Div.1985), certif. denied, 104 N.J. 382, 517 A.2d 390 (1986).

The judgment of the Appellate Division is affirmed.