Goldmann, Conford and Freund. The opinion of the court was delivered by Goldmann, S.j.a.d.
The Morris County grand jury returned an indictment charging defendant, in two counts, with bookmaking in violation of N.J.S. 2 A:112-3. The jury found him guilty as charged and he was sentenced to a State Prison term of 1 to 1 1/2 years on each count, to run concurrently. Defendant made no motion for a new trial but did move for resentencing. Following the denial of this motion he appealed and was admitted to bail pending determination of the appeal.
The room where the alleged bookmaking took place is located toward the rear of a building on Waverly Place, Madison, N.J., owned by defendant's father, Joseph. The ground floor front is occupied by Wayne Cleaners, whose proprietor has the use of the rear room for storing supplies. Besides cleaning supplies and boxes, there were paint ladders and paint cans in the room, as well as a table, chair and telephone. According to Joseph Caccavale, he had rented the rear room to one J. Beroni, a painter, in March 1957. He further testified that Beroni had at various times fallen in arrears in rent payments; that he had sent defendant to see Beroni in order to collect back rent, and for that reason had given his son a key to the room.
The police had the rear room under surveillance on January 23 and 24, 1958. Defendant was observed on both days entering the hallway which led from a side entrance to the room. (His explanation was that he had gone there to see Beroni about the rent.) Early in the afternoon of January 24, Captain of Detectives Burke, who was associated with the prosecutor's office, and a group of local police officers conducted a raid. We deem it unnecessary to detail all that took place at the time. Suffice to say, defendant was apprehended after he had left the rear room by a second door leading directly to the outside of the building. He had closed and barred the hallway door when he saw officers in the corridor, and during the eight or ten minutes he was in the room the officers smelled something burning and heard liquid drawn off. After apprehending defendant the police found smoke in the room, a bucket containing charred paper, and the floor partially covered with burned paper. On the table they found a racing publication dated January 24; underneath were pads of paper, identified by Burke as rundown sheets, and in the drawer two bills of recent date, made out to defendant. Although defendant denied he had a key to the room, the officers found such a key in his possession.
Defendant's first ground of appeal is that the conduct of the prosecutor, in eliciting from Captain Burke remarks allegedly highly prejudicial to defendant, amounted to substantial error and therefore the denial of a fair trial. Burke was the first witness called by the State. On direct examination he testified to the surveillance made at his direction of the room where the alleged bookmaking took place, the surveillance of defendant on the two days in question, the raid, and the apprehension of defendant. Part of the cross-examination of Burke was devoted to the investigation he had made with regard to the installation of the telephone in the rear room. It developed that one Arthur Badash had told him how the phone was installed. Badash had been a partner of David Arrow in the Wayne Cleaners enterprise, but was no longer associated with him at the time of defendant's
arrest. Immediately after the raid Badash had told Burke he could not recall who had given him the key to the room. When Burke phoned him a week before the trial Badash said that Joseph Caccavale had given him the key, but when the captain called on Badash personally, he told him he had in the meantime talked to Arrow and now remembered that it was not Joseph Caccavale who gave him the key, but a person dressed as a painter. It is to be noted that all this was manifest hearsay. Further, no part of the direct examination dealt with conversations between Burke and Badash; indeed, in no respect did it deal with Badash or his former partner Arrow.
On redirect examination the prosecutor further pursued this line of inquiry. After establishing that Badash was no longer a partner at the time of the raid the prosecutor inquired:
"Q. You say, in response to Mr. Valgenti's question, he asked whether you investigated to ascertain who gave the key to the telephone man and you say that the man who was still there with the Wayne Cleaners told you what? You tell us that.
A. No, I did not. As I can best recall it, Dave Arrow, the man that has the business now, also said, at the time, that he was interviewed here in the Prosecutor's office, that it was one of his workers, or either that or the key was hanging up some place when Mr. Tracey, the installer, came into the cleaning establishment.
Q. All right. Do you know which one of these two men, if any, if either, actually gave the installer the key?
A. I do not. The only thing I can say was that Art Badash told me, on the telephone, that he was the one that gave the key to Mr. Tracey, the installer.
Q. All right. Now just one other question. Did either of them, at any time, indicate any reluctance to answer the question?
A. They both were reluctant to answer the question.
Q. Did they tell you why?
A. Yes, they said they were scared. Mr. Badash told me on the telephone, he said, 'What do you want me to get, a bullet in my back,' or words to that effect.
Mr. Polow: I have no further questions.
The Court: You may be excused."
There was no objection to this line of inquiry, nor did defense counsel make any request that the jury be instructed
to disregard Burke's final answer, which he now considers as prejudicial. Nonetheless, defendant insists that no instruction to the jury could possibly, in the circumstances, have erased the effect of Burke's remarks on the minds of the jury. The contention is that the prejudice created was so great as to constitute substantial error, requiring reversal under the plain error rule, R.R. 1:5-1(a), citing among other cases, State v. Landeros , 20 N.J. 69, 74-75 (1955); State v. D'Ippolito , 19 N.J. 540, 548 (1955). The argument made is that there was nothing to excuse the direct inference conveyed to the members of the jury by Burke's last answer that they were dealing with a defendant so utterly vicious that he would put a bullet in the back of one who informed against him. It is also claimed that the timing of the questions and the manner in which they were phrased on redirect suggests that the prosecuting attorney knew what the answers would be.
Ordinarily, where defense counsel elicits part of a conversation between a witness and another person, the State may introduce the remaining portions of such conversation relevant to the part offered. 7 Wigmore, Evidence (3 d ed. 1940), § 2113, p. 523; State v. Doro , 103 N.J.L. 88, 93 (E. & A. 1926); and cf. State v. Engsberg , 94 N.J.L. 464, 466 (E. & A. 1920).
The prosecution probably knew that Badash had told Burke of his fear of getting a "bullet in my back," for Burke was associated with the prosecutor's office and had been in charge of the investigation. However, it had not attempted to elicit this information on direct examination. It was only when Burke's cross-examination showed that Badash had given three versions of how he got the key to give to Tracey, who installed the telephone -- the latest version being the one about the painter in overalls, and the most favorable to the defense -- and the subject had been dropped without exploring the reason or motive behind the inconsistencies, that the State asked the questions it did.
We cannot say that Burke's last answer, standing by itself and considered in the setting of the testimony adduced up to that point, exhibits the prejudicial character of what was criticized in Landeros and D'Ippolito , or in cases like State v. Siciliano , 21 N.J. 249, 262 (1956); State v. Orecchio , 16 N.J. 125, 140 (1954); State v. Bogen , 13 N.J. 137 (1953); and State v. Ferrell , 29 N.J. Super. 183 (App. Div. 1954). As we have already observed, the final answer on redirect went unchallenged. Moreover, defense counsel himself referred to the testimony in his summation, and thereby gave it extra importance, when he said:
"It was said a couple of times in the case that witnesses were put in fear. One fellow was going to get shot in the back, and, I don't know, some other fellow was also going to get shot. There is not too much that I can say about a remark like that, Ladies and Gentlemen. I am sure that you will regard it in its proper light and you've got to regard it after having watched the witnesses for the defense. The defendant himself, and he had only one witness, his father. The impression, that I suppose the State is trying to leave in your mind here is that you are dealing with some racketeers and if a witness opens his mouth, next time he will find himself in a lead coffin or a concrete coffin, at the bottom of the river. That is completely unfair, Ladies and Gentlemen. Here is a boy that is on the witness stand, the defendant, never been convicted of any crime, being frisked for a gun and supposedly made to appear that he was carrying guns. He says he never owned one. His father gets on the stand, a business man with investments. Certainly he doesn't need any bookmaking activity to keep himself nor his children. And the impression is being made here with these remarks that these are notorious people whom no on would dare testify against, that if you do, why you're apt to find yourself in a bad spot. A bit unfair, Ladies and Gentlemen, after you found some evidence, watched the defendant and his witness; anything in the testimony, you should disregard that from your mind and is prejudicial and not worth any kind of value in the case in your deliberation toward a judgment."
The defense, as noted, did not ask the court to instruct the jury to disregard Burke's concluding testimony. The attack upon this testimony comes late in the day.
There is more merit in defendant's second point, which is that the neutralization of the testimony ...