SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4146-17T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LEO T. LITTLE, JR., a/k/a 

JAMES SMITH, and JOHN 

SMITH,

Defendant-Appellant.

____________________________

Submitted December 11, 2019 – Decided

Before Judges Koblitz, Whipple, and Gooden Brown.

On appeal from the Superior Court of New Jersey, Law 

Division, Camden County, Indictment No. 16-08-2314.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Monique D. Moyse, Designated Counsel, on 

the brief).

Gurbir S. Grewal, Attorney General, attorney for 

respondent (Adam David Klein, Deputy Attorney 

General, of counsel and on the brief).

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the 

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

February 5, 2020
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Defendant Leo T. Little Jr., appeals from a March 9, 2018 judgment of 

conviction entered after a jury found him guilty of aggravated assault, N.J.S.A. 

2C:12-1(b)(4); possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-

4(a)(1); unlawful possession of a weapon, N.J.S.A. 2C:39-5(b)(1); and certain 

persons not to have weapons, N.J.S.A. 2C:39-7(b)(1). Because we find error in 

the jury voir dire, we reverse and remand for a new trial.

On May 26, 2016, A.R. was driving her cab in Camden. B.R. 

accompanied her for safety purposes. While parked, A.R.'s car was side-swiped 

by a green Buick Century.

A.R. and B.R. exited the car to assess the damage, and defendant stepped 

out of the passenger side of the Buick. B.R. told defendant he would have to 

pay for the damage. According to B.R., defendant was irate, and defendant 

began "talking to [him] on the side of [his] face" as B.R. was taking pictures of 

the damage. B.R. told defendant he was going to call the police to obtain a 

police report. As B.R. began to dial his phone, defendant yelled, "Oh, you're 

going to call the cops? Oh, you['re] calling the cops? You're calling the cops?" 

After the police were called, defendant left, stating he was going to go get money 

for B.R.
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When he returned, defendant had what B.R. identified to be a black 

Beretta handgun in his waistband. Defendant cocked the gun and waved it at 

A.R. and B.R., saying, "move the car," "move that shit, move that shit." B.R. 

knew defendant was wielding a Beretta because he grew up around weapons, his 

parents had firearms licenses, and his friend owned a smaller Beretta firearm. 

A.R. also recognized the object as a black gun.

When the police arrived, A.R. shouted out, "He has a gun!" Defendant 

ran down the street, and a responding officer saw him holding his waistband. A 

police officer chased defendant to a row home where a crowd of twelve-tofifteen people were gathered. Defendant ran up the steps and dropped an object 

next to a column on the porch. A female picked up the object and left the area. 

Defendant eluded capture, and police never recovered the gun.

Defendant left the Buick behind when he fled. Inside the glove box, police 

found several traffic summonses issued to defendant. On June 21, 2016, police 

pulled over a speeding green Buick Century in Camden. Defendant was 

identified as the driver and was arrested and subsequently convicted by a jury.

During jury voir dire, defense counsel objected to the use of the following 

question:

The law does not require that the State recover a gun 

even though the defendant has been charged with 
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weapons-related offenses. If the State does not produce 

the physical firearm allegedly used in this case, would 

this affect your ability as a juror?

Defense counsel argued the question injected advocacy into jury selection, 

because whether the State could prove defendant possessed a gun went to the 

merits of its case. The trial judge overruled the objection, noting the question 

could reveal potential jurors who would be unwilling to convict a defendant 

based on circumstantial and testimonial evidence.

The question was asked but confused some potential jurors. For example, 

one potential juror responded, "You mean there's no proof -- that there was a 

weapon or something? Or -- what do you mean? . . . I don't know. That's kind 

of weird." Another potential juror asked the judge to repeat the question and 

replied it would affect his ability to impartially consider the evidence because, 

"You try to prove . . . this person is guilty and then one of the [pieces of]

evidence could be the gun, and you cannot provide the . . . evidence . . . . I think 

. . . I wouldn't say this person is guilty." At one point, the trial judge attempted 

to clarify the question, explaining,

the State alleges . . . that they have witnesses who said 

that this is what happened, and that they saw a gun, but 

they don't have . . . an actual gun to produce, and the 

law doesn't require that they have an actual gun to prove 

this as a prima facie case in terms of making out their 

basic case. So the question is if that's how this case is 
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presented would that affect your ability to be fair and 

impartial as a juror?

Defense counsel renewed his objection, and the trial judge revised the 

question as follows:

The law does not require that the State produce a gun at 

trial even though the defendant has been charged with 

weapons offenses. If the State did not recover and does 

not produce the gun allegedly used in this case, but 

presents evidence in the form of testimony, how will 

this affect your ability as a juror?

Still, the revised question caused some potential jurors to hesitate. One juror 

responded, "I would think if you're telling me that's evidence enough and you're 

telling me just to judge the facts, that's what I'll do. I can be objective." Another 

juror answered, "Well, the whole thing is about the gun. . . . So if they don't 

have a gun, they can't prove that he did it." One juror was confused, stating, 

"I'm a little uncertain of that. I'm not sure how to answer that one."

The State struck some jurors who affirmatively answered the above 

questions, or who expressed confusion or hesitated in response to the question. 

However, despite objecting, defense counsel did not request any particular 

relief.
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A second trial before the same jury was held on the certain persons charge. 

Defendant stipulated to his prior conviction, and the jury returned a guilty 

verdict.

The judge sentenced defendant to a fifteen-year aggregate sentence with 

a seven-and-one-half year parole ineligibility period. This appeal followed.

Defendant raises the following issues on appeal:

POINT I

THE IMPERMISSIBLE INDOCTRINATION OF THE 

JURY DURING VOIR DIRE DEPRIVED 

[DEFENDANT] OF HIS RIGHT TO FAIR TRIAL[] 

WITH AN IMPARTIAL JURY.

POINT II

THE IMPROPER JURY CHARGE ON CERTAIN 

PERSONS DEPRIVED [DEFENDANT] OF A FAIR 

TRIAL BECAUSE THE COURT TOLD THE JURY 

THAT [DEFENDANT] HAD BEEN CONVICTED OF 

POSSESSION OF A CONTROLLED DANGEROUS 

SUBSTANCE WITHIN 1000 FEET OF A SCHOOL 

EVEN THOUGH [DEFENDANT] STIPULATED TO 

THE PREDICATE OFFENSE, AND AS A RESULT 

HIS CERTAIN PERSONS CONVICTION MUST BE 

REVERSED.

POINT III

THE PROSECUTOR'S PATTERN OF MISCONDUCT 

AND OVERREACHING DEPRIVED [DEFENDANT]

OF HIS RIGHT TO A FAIR TRIAL. 
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A. The Introduction into Evidence of a Real Gun 

as a Replica Deprived [Defendant] of his Right to 

a Fair Trial.

B. The State's Unnecessary and Prejudicial 

Introduction of [N.J.R.E.] 404(b) Evidence 

Violated [Defendant's] Right to a Fair Trial. (Not 

raised below)

C. The Prosecutor's Improper, Irrelevant 

Injection of Fear of Retaliation into This Case 

Necessarily Had the Capacity to Lead to an 

Unjust Result. (Not raised below)

D. Improprieties in the Prosecutor's Closing 

Argument Deprived [Defendant] of His Right to 

a Fair Trial and Led to an Unjust Result. 

(Partially Raised Below)

E. The Prosecutor's Arguments During the 

Certain Persons Trial that the Jury Already Found 

that [Defendant] Possessed a Firearm Led 

Directly to an Unjust Result. (Not raised below)

F. Conclusion.

POINT IV

THE TRIAL COURT ABUSED ITS DISCRETION BY

IMPOSING A CONSECUTIVE SENTENCE ON 

CERTAIN PERSONS. 

POINT V

THE TRIAL COURT ABUSED ITS DISCRETION BY

IMPOSING A MANIFESTLY EXCESSIVE 

SENTENCE. 
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Defendant argues the missing gun voir dire question impermissibly 

"indoctrinated" potential jurors. In effect, potential jurors were asked to give 

their views on their understanding of the criminal law before hearing the 

evidence. According to defendant, the question primed the jury to find 

defendant guilty despite the missing gun. Defendant relies on State v. Manley, 

54 N.J. 259 (1969) and State v. Kelly, 118 N.J. Super. 38 (App. Div. 1972), to 

argue that it was error for the trial judge to question potential jurors on legal 

principles before the presentation of evidence. As a result, defendant contends 

the prosecutor's use of strikes aided in creating a potentially biased jury. We 

agree.

"Voir dire procedures and standards are traditionally within the broad 

discretionary powers vested in the trial court and 'its exercise of discretion will 

ordinarily not be disturbed on appeal.'" State v. Papasavvas, 163 N.J. 565, 595 

(2000) (quoting State v. Jackson, 43 N.J. 148, 160 (1964)). "'The purpose of 

voir dire is to ensure an impartial jury' by detecting jurors who cannot fairly 

decide a matter because of partiality or bias." State v. O'Brien, 377 N.J. Super. 

389, 412 (App. Div. 2004) (quoting State v. Martini, 131 N.J. 176, 210 (1993)), 

aff'd in part, rev'd in part on other grounds, 183 N.J. 376 (2005).

"[T]here is no particular litany required for the jury voir 

dire," and the court is not obligated "to ask any 
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particular question or indulge the defendant's requests 

absolutely." Appellate review is generally limited to 

determining whether "the overall scope and quality of 

the voir dire was sufficiently thorough and probing to 

assure the selection of an impartial jury."

[Id. at 412–13 (alteration in original) (first quoting 

State v. Lumumba, 253 N.J. Super. 375, 393–94 (App. 

Div. 1992), then quoting State v. Biegenwald, 106 N.J. 

13, 29 (1987)).]

"While . . . the trial judge possesses 'broad discretionary powers in conducting 

voir dire . . .[,]' 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. Tinnes, 379 N.J. Super. 179, 184 (App. 

Div. 2005) (quoting State v. Fortin, 178 N.J. 540, 575 (2004)).

"Whether or not to inquire of prospective jurors about attitudes concerning 

substantive defenses or other rules of law which may become implicated in a 

trial or in the charge is within the discretion of the trial court." State v. Murray, 

240 N.J. Super. 378, 393 (App. Div. 1990). "Questions on subjects covered in 

the court's charge should be rarely allowed." Ibid. But, "[g]enerally, a trial 

court's decisions regarding voir dire are not to be disturbed on appeal, except to 

correct an error that undermines the selection of an impartial jury." State v. 

Winder, 200 N.J. 231, 252 (2009).
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In Manley, our Supreme Court shifted the responsibility for conducting 

jury voir dire from lawyers to judges. 54 N.J. at 280. The intent was to promote 

efficiency in securing "a fair and impartial jury" and to forego lawyers' "efforts 

to indoctrinate, to persuade, to instruct by favorable explanation of legal 

principles . . . and the facts and the relation of one to the other. . . ." Id. at 280–

81. "It means also a prohibition of the hypothetical question intended and so 

framed as to commit or to pledge jurors to a point of view or a result before they 

have heard any evidence, argument of counsel or instructions of the court." Id.

at 281.

The defendant in Manley was charged with murder and sought to question 

the jury on their view of his prior assault convictions. Id. at 263–64. However, 

when jury voir dire was conducted, it was not yet known whether the defendant 

would testify. Id. at 264. Thus, the trial judge declined to ask potential jurors 

about their views on a person's criminal past to avoid influencing the jury. Ibid.

The defendant did ultimately testify, and on appeal claimed he should have been 

allowed to question potential jurors about his prior crimes. Id. at 265. Our 

Supreme Court held the trial court did not abuse its discretion, because the 

decision prevented the defendant from experiencing unnecessary prejudice in 

the event he did not testify. Id. at 271. The Manley Court then crafted a court 
11 A-4146-17T4

rule that steered jury voir dire away from an advocacy-based approach by 

reducing questions intended to identify jurors who would be sympathetic to a 

particular argument. Id. at 280–81.

In Kelly, the defendant wanted to ask potential jurors about their views on 

the insanity defense. 118 N.J. Super. at 46. The trial court declined to do so, 

and this court affirmed the decision, because asking the question runs the risk 

of committing jurors to a particular viewpoint without hearing expert testimony 

or evidence. Id. at 49. In order to conduct an efficient jury selection, questions 

about jurors' views on the law or substantive defenses should be avoided, 

particularly if the legal rule will be covered in the court's charge. Id. at 51.

Manley and Kelly prohibit advocacy-based jury voir dire questions 

intended to commit potential jurors to a point or view or outcome before they 

have heard the evidence. However, this does not exclude the use of contextspecific questions in order to ferret out bias among the jury pool. In State v. 

Moore, our Supreme Court explained

voir dire acts as a discovery tool. It is like a 

conversation in which the parties are trying to reveal 

the source of any such attitudes without manipulation 

or delay of the trial. However, in order for that 

discovery procedure to be effective, potential jurors 

need to have some basic comprehension about what 

their legal duties as jurors will be.
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[122 N.J. 420, 446 (1991).]

The defendant in Moore sought to ask potential jurors what their reaction 

would be to hearing the defendant was accused of murdering a pregnant woman 

and a young child. Ibid. The trial court refused to ask the question because it 

would force the potential jurors to speculate on how their verdict might be 

impacted by the disturbing details of the case. Ibid. However, our Supreme 

Court reversed the trial court because this type of question, while context-based, 

was helpful to determine jurors whose judgment may be clouded by the facts of 

the case. Id. at 447. To limit voir dire to generic questions about potential 

jurors' ability to follow the law, as a general matter, was an "overread[ing]" of 

Manley, "which was not to eliminate judicial inquiry into juror biases in the 

context of the case but rather 'to limit more stringently the conduct and scope of 

the voir dire.'" Ibid. (quoting Manley, 54 N.J. at 280). Indeed, it was appropriate 

to ask potential jurors about whether the facts of a case would affect their 

impartiality because "that is the purpose of voir dire: to see if there are biases or 

predispositions in the 'particular case' that is before the court." Id. at 448; see 

also State v. Biegenwald, 126 N.J. at 33 ("Regrettably, we perceive from the 

records in many of the cases coming before us that the trial courts have read 

Manley . . . to limit voir dire to the bare minimum necessary to qualify a juror.").
13 A-4146-17T4

Here, defendant contends the voir dire question primed the jury to ignore 

the fact that the State did not recover the gun but still find defendant guilty. 

Although the trial judge was within his discretion to fashion context-specific 

questions to determine whether any in the particular jury pool might ignore his 

charge, the question caused several jurors to reveal they would only convict 

defendant of possessing a firearm with tangible proof of the gun. Those jurors 

were then dismissed by the State, which potentially resulted in a jury biased 

toward the State's argument.

Because we reverse defendant's conviction and remand for a new trial, we 

need not address defendant's remaining arguments.

Reversed. We do not retain jurisdiction.