State v. Witte

William J. Brennan, Jr., J.

(dissenting). In State v. Costa, 11 N. J. 239 (1953); Id., 20 N. J. Super. 28 (1952), the State attempted to prove that Costa’s Barn was operated as a gaming place between January 24, 1949 and March 31, 1949, through evidence of non vult pleas by state witnesses to indictments alleging the operations of the Barn by them for such purposes during that period. In that case Costa was on trial upon an indictment that he operated the Barn as a gambling place between those dates. The State put the so-called “Big Five” on the stand, to have each testify that he had pleaded non vult to an indictment charging him with operations at that time. The State insisted that each plea was an admission evidential against Costa on the fact of operation by him in that period, even though none of the “Big Five” would admit on the stand that operations had in fact been carried on through that period and insisted that operations had ceased in August 1948. We affirmed the judgment of the Appellate Division reversing Costa’s conviction. We held that the pleas of non vult were not evidential against Costa because not admissions by him or in any other wise binding upon him. We said that the State could properly elicit the fact of his plea from its own witness on oral examination or alternatively by proof of the judgment *617 record only if the evidence was offered for the limited purpose of affecting the credibility of the witness, N. J. S. 2A :81-12, in respect of other relevant and material testimony which might be obtained from the witness by the State. We were careful to point out the danger of prejudice to the accused on trial except as the limited office of the evidence was made clear to the jury, and laid down the principle that

“It is incumbent upon the trial judge closely to supervise the introduction of the proofs of the witness’s conviction for the offense and carefully to instruct the jury, not necessarily only in his charge but perhaps also when the proofs are admitted, as to the limited office to be served by the evidence in their [the jurors’] consideration of it.”

The instant case was tried after reversal of Costa’s conviction by the Appellate Division and pending the appeal to this court. The only difference I can see between the State’s tactics in this trial and the tactics employed upon Costa’s trial is that where in Costa the evidence was frankly offered to establish operation in the period, here, balked by the decision in Costa, the State resorted to a deliberate and carefully conceived plan of interrogation of Guarini to achieve that result as regards the jury under cover of protestations that the effort was designed solely to affect Guarini’s credibility. What we struck down in Costa as improper, when the State openly disclosed its intention, we are here sanctioning, although the end was patently effected through calculated design to circumvent the limitations laid down for this form of inquiry. The State hammered at Guarini over three days to force him to admit that his plea was to an indictment covering the period in question. If Guarini’s credibility was actually the 'target, many hours, indeed days, could have been saved and the great part of the 144 pages of Guarini’s printed testimony would have been unnecessary, if, faced with Guarini’s disclaimer, the State had utilized the alternative device of putting Guarini’s judgment record in evidence. State v. Duelks, 97 N. J. L. 43 (Sup. Ct. 1922); State v. Silver, 101 N. J. L. 232 (E. & A. 1925), affirming 2 N. J. Misc. 479 (Sup. Ct. 1924); State v. Costa, supra. *618 It is significant that that record was marked for identification immediately after Guarini took the stand on the first day and answered the question whether he had pleaded to an indictment charging operation within the crucial period with the response that operation at Costa’s Barn ceased in August 1948. Yet the State neither then nor at any time offered the record in evidence. Witte’s counsel repeatedly objected that the dogged and prolonged interrogation which followed could only be designed to prejudice the accused, but the trial judge permitted the Deputy Attorney-General to persist, indeed even after receiving the obviously equivocal answer, “Not necessarily for that purpose, no sir,” when the court asked if the purpose of the examination was to have the jury infer that Costa’s Barn was operated during the period charged.

The majority opinion says:

“There was no contention at any stage of the trial that proof of the witness Guariui’s pleas of non vult to the indictments severally charging that he maintained disorderly houses at Costa’s Barn and Hayes’ Garage would violate the rule laid down in State v. Costa., 11 N. J. 239 (1953). And there is no such insistence here. Indeed, the Costa case is not cited on the briefs submitted by the accused.”

But the record shows that the very first time Guarini was asked to acknowledge that the indictment to which he had pleaded charged operation of Costa’s Barn “from January 24, 1949, until March 31, 1949,” this very shortly after he came to the stand, counsel promptly objected on the ground that “If it be the purpose of the State to prove operation the pleas to an indictment are not proof of this fact. The State has gone as far is it dare go in the examination of its witness on the basis of credibility of a witness it calls and I object to any further questions and particularly to this question on the gro.unds which I have urged.” True, counsel did not repeat these reasons in connection with subsequent objections except to incorporate them, as the majority notes, in the statement “on the same grounds heretofore urged,” but what more could be asked of him? In any *619 event, some three weeks later, when all the proofs were in and before the ease was submitted to the jury, the accused’s counsel moved “to strike from the record all testimony taken from Anthony Guarini as to his plea of non vult or otherwise to certain indictments charging Costa’s Barn operation for specific periods of time and all testimony which relates to the period of time'covered by any charge to which pleas were offered, on the ground that they were totally incompetent in this issue as proof of any fact with regard to time whatsoever,” that “anything Guarini may have done is proof against him, but not proof as against Chief Witte.” In this court the defendant’s brief argues that “by these rulings in the admission of evidence and the rulings on the motions to strike the evidence * * * we sincerely believe that harmful error was committed in allowing this ‘evidence’ to remain in the record and come before the jury”; the “evidence” referred to being specified as “the testimony of Anthony Guarini, in and by which operation of Costa’s Barn and Hayes’ Garage for the period between January and March 1949 was to have been established by showing a plea by Guarini to an indictment charging such operation for the period of time referred to and the whole approach to a development of the fact that the attorney for the defendant Witte was the attorney for the so-called ‘Big Five,’ who had represented these defendants at the time of entering the plea, including that testimony which attempted to revive in the memory of the jurors the publication appearing in newspapers associated with the names ‘Adonis,’ ‘Lynch,’ ‘Longano’ and ‘Moretti.’ ”

I must most respectfully disagree with my colleagues’ conclusion that “Thus, there was no contention that this evidence was inadmissible under the Gosta case.” If the decision is not actually cited to us on the brief, the accused’s counsel plainly invokes the principles therein on his brief, as he did, and sufficiently to require our determination of the issue, at the trial.

Next, the majority says that the purpose of the Deputy Attorney-General in his interrogation of Guarini was simply *620 “to refresh his [Guarini’s] recollection as to the period of operation.” Even the Deputy Attorney-General did not claim that that was his purpose. To the extent that he was willing to state any purpose, his insistence was that he was merely pursuing matter affecting Guarini’s credibility. And I have never known counsel to attempt to have his own witness refresh his recollection as to the contents of a record without offering the witness the record for examination. But here the Deputy Attorney-General took great care not to let Guarini see the judgment record. Iiis tactics were time after time to ask the question whether it was not the fact that the indictment Guarini had pleaded to charged him with operations at Costa’s Barn from January 34, 1949 to March 31, 1949—indeed, to press for answers to other like questions even after Guarini answered to one of them that such must be the case if that was the way the indictment read.

Finally, it is said, “Guarini’s pleas to the indictments returned against him would have had no adverse bearing on the inquiry.” Even if I did not have a contrary view, and I do because to me the record shows an utter failure to keep the interrogation of Guarini within permissible bounds, the prejudice to the accused of this action coupled with other actions of the Deputy Attorney-General, particularly noticed by the majority and by them denominated “an indefensible maneuver,” clearly demands a reversal at our hands. The Deputy Attorney-General was allowed over objection to elicit the wholly irrelevant fact that Witte’s trial counsel was Guarini’s attorney when Guarini pleaded, and then, totally indefensible on any ground and also over objection, was allowed to question Guarini whether Guarini’s asserted closing down of operations at Costa’s Barn a month before August 1948 followed a conversation with “one of the assistant prosecutors,” and upon Guarini’s answering that he never knew any prosecutors to ask Guarini whether he did not know that Witte’s counsel was an assistant prosecutor at that time. The entire court subscribes to the observation of the majority that “there was no warrant whatever for *621 intimating that the accused’s trial attorney was also the attorney for the ‘big five,’ and the insinuation that the operator of Costa’s Barn. was in league with [his then counsel] when he was assistant to the prosecutor of the county.” Where I part with the majority is in their conclusion that “It is abundantly clear that the impropriety did not have an evil consequence.” How possibly can this be true of matter necessarily suggestive to jurors’ minds of the notion that the defendant and his counsel had long been parties to a corrupt conspiracy with notorious lawbreakers? This insidious seed, sown at that early stage of the trial (which continued for almost three weeks longer), had a monstrous capacity for flowering into full-blown prejudice against the defendant, not only as to the Costa count but upon all of the counts of the indictment. True, there is abundant evidence in this case of widespread gambling in Lodi of which defendant knew and which he did nothing to suppress as it was his duty to do. But, however strongly the evidence points to his guilt, society’s interest is not alone that he shall not escape punishment but equally that his conviction shall be had upon a fair prosecution and a fair trial. Once that barrier to state tyranny is breached all individual liberties are at hazard.

The majority says that “The motion for mistrial was ill-advised as a drastic measure not in keeping with the requirements of justice in the particular circumstances,” and that at best “the danger of this deviation from the proprieties was fully remediable by a cautionary instruction to the jury to disregard the insinuative queries as utterly irrelevant.” But I nowhere find that the trial judge in any wise whatever admonished either the Deputy Attorney-General or the jury. Upon counsel’s motion for mistrial the trial judge merely said, “I will deny your motion. You may note your objection.” Certainly it cannot be suggested that the responsibility of this court and of the trial judge to deal with such a gross deviation from ethical standards of prosecution shall depend upon whether the accused’s counsel adopts one rather than another form of objection. We in this State have *622 abandoned, I had hoped forever, the notion that a trial is a mere game in which justice is secondary to forms and rules. If counsel had made no objection at all, upon the plainest principles of justice and fairness, the circumstances here exhibited would cry out for remedial action by us of our own motion. This case, to me, is of the type we had in mind when, in State v. Bogen, 13 N. J. 137 (1953), we unanimously adopted what was said by Chief Justice Stone in New York Cent. R. Co. v. Johnson, 279 U. S. 310, 318 , 49 S. Ct. 300, 303 , 73 L. Ed. 706, 710 (1929) :

“* * * state, whose interest it is the duty of court and counsel alike to uphold, is concerned that every litigation be fairly and impartially conducted and that verdicts of juries be rendered only on the issues made by the pleadings and the evidence. The public interest requires that the court of its own motion, as is its power and duty, protect suitors in their right to a verdict, uninfluenced by the appeals of counsel to passion or prejudice. * * * Where such paramount considerations are involved, the failure of counsel to particularize an exception will not preclude this court from correcting the error.”

I would reverse and remand for a new trial.

Oliphant and Wacheneeld, JJ., concur in this dissent.

For affirmance—Chief Justice Vanderbilt, and. Justices Heiier, Burling and Jacobs—4.

For reversal—Justices Oliphant, Wacheneeld and Brennan—3.