Conford, Kilkenny and Lewis. The opinion of the court was delivered by Conford, S.j.a.d.
On June 7, 1963 a jury in the Union County Court found defendant guilty of breaking and entering "Whitey's Tavern" in Scotch Plains, New Jersey on January 25, 1963, with intent to steal, in violation of N.J.S. 2A:94-1. Defendant's motion for a new trial was denied. He appeals from the ensuing sentence.
Defendant did not take the stand to testify in his own defense. Both the assistant prosecutor in his summation and the trial judge in his charge, following the accepted practice in existence at the time of trial, State v. Corby, 28 N.J. 106, 117 (1958); N.J.S. 2A:84A-17(4), commented upon defendant's failure to testify and the adverse inference that the jury might draw therefrom. By virtue of subsequent decisions of the United States Supreme Court, however, such comments violate the defendant's rights under the Fifth Amendment of the federal constitution made applicable to state actions by reason of the Fourteenth Amendment. State v. Lanzo, 44 N.J. 560 (1965).
Accordingly, the judgment of conviction of this defendant is reversed and the case is remanded to the Union County Court for a new trial.
Since the case must be retried, we deem it expedient to discuss certain of the other grounds for reversal asserted by defendant, in order that the trial court may have the benefit of our views.
Defendant claims that he was handcuffed during the trial and that this circumstance denied him a fair trial. The State asserts that there is no proof that defendant was, in fact, handcuffed. The record does not disclose that defendant or his attorney objected to any such treatment of him. The State does not contend that there was any just reason for manacling defendant during the trial. We find no need to resolve this factual dispute in view of our reversal and remand for the reasons noted above, but we assume that defendant will not be handcuffed during the retrial of this case without
justifiable cause therefor. See State v. Roberts, 86 N.J. Super. 159 (App. Div. 1965), for a treatment of the subject.
Defendant alleges that his requests for counsel during his preliminary incarceration were refused, thereby denying him his constitutional rights. Defendant was arrested on January 25, 1963. He was duly brought before a magistrate who committed him that same day to the Union County jail. Counsel was first assigned on February 20, 1963, but was unacceptable to defendant. A second attorney, who tried the case, was assigned on March 29, 1963, defendant accepting him without objection. The indictment was returned on April 26, 1963 and defendant pleaded not guilty on May 5, 1963, more than a month after the final assignment of counsel. Trial did not commence until June 5, 1963, more than two months after such assignment.
Defendant made no showing at trial of prejudice resulting from the delay in assignment of counsel, even were we to assume as true that he made requests for counsel which were refused. (A present appellate claim of prejudice, in relation to the search and seizure question, is discussed infra.) A showing of prejudice is necessary to justify relief on this ground. State v. Dennis, 43 N.J. 418, 427 (1964). Here, the defendant did not confess, after his requests for counsel were assertedly denied, as in Escobedo v. State of Illinois, 378 U.S. 478, 84 S. Ct. 1758, 12 L. Ed. 2 d 977 (1964). In fact, defendant never made any inculpatory statement, but, on the contrary, protested his innocence and relied upon an alibi. Unlike Hamilton v. State of Alabama, 368 U.S. 52, 82 S. Ct. 157, 7 L. Ed. 2 d 114 (1961), defendant lost no defenses by virtue of the proceedings before the magistrate; unlike White v. State of Maryland, 373 U.S. 59, 83 S. Ct. 1050, 10 L. Ed. 2 d 193 (1963), no plea of guilty was received in evidence; and unlike Pointer v. State of Texas, 380 U.S. 400, 85 S. Ct. 1065, 13 L. Ed. 2 d 923 (1965), no testimony was taken before the magistrate which was later presented at the trial.
As noted in State v. Dennis, supra (43 N.J., at p. 427):
"Upon the return of the indictment, the earlier proceedings before the magistrate were superseded and * * * [defendant] was thereafter entitled to an arraignment on the indictment and to a fair trial with all the protective devices afforded by the Constitution, the statutes and the judicial decisions. He had these in full measure and he suffered no prejudice by any lack of counsel before the magistrate."
The failure to assign counsel before arraignment did not invalidate the conviction.
Defendant's next assertion of error is that he was denied a preliminary hearing and was thereby deprived of his constitutional rights.
Assuming as true the allegation by defendant that the magistrate conducted no preliminary examination of witnesses before committing defendant to the county jail to await the action of the grand jury, defendant does not establish thereby a violation of any constitutional rights which would require a reversal of his conviction after indictment and trial by jury in the County Court. State v. War, 38 N.J. Super. 201 (Cty. Ct. 1955); State v. Spindel, 24 N.J. 395 (1957); State v. Smith, 32 N.J. 501, 536 (1960); State v. Kirkland, 82 N.J. Super. 409 (App. Div. 1964); State v. Jackson, 43 N.J. 148 (1964); State v. Dennis, supra.
The defendant complains that the trial court admitted in evidence as exhibits for the State, over his objection, certain tools found at the scene of the crime by the investigating police. These consisted of a lug wrench, a flashlight, a red-handled screwdriver, two brown-handled screwdrivers and a gray-handled screwdriver. Defendant maintains that these objects were not identified by anyone as having been used in the commission of the crime and that there was no proof connecting him with their use.
The tools were properly admissible in evidence. They were found at the scene of this breaking and entering. The owner of the tavern testified that they did not belong to him. Robert D. Auer, 16 years old, and Sylvester S. Guimaraes, aged 17, also arrested by the police in connection with this crime, testified
for the State and admitted their participation therein. Both of these witnesses testified that defendant accompanied them to the scene in an automobile driven by Guimaraes. Guimaraes waited out in the car while Auer and defendant went to make the unlawful entry, after taking tools from the car to effect that purpose. Auer testified that he climbed up on a box, put a glove given to him by defendant over the end of a lug wrench, punched the lug wrench through a pane of glass, and then climbed through, dropping the lug wrench in the process. He further testified that he then opened the side door and let defendant in. The screwdrivers were allegedly used to pry open the coin boxes on various amusement devices in the tavern.
Even though these tools were not specifically identified by the alleged accomplices as those actually used in the commission of the crime, nevertheless the proofs permitted an inference that defendant brought or participated in bringing them to the premises for the criminal purpose. They were properly admissible because of their relevant probative quality in confirming that there was a breaking and entry in the manner and by the means described by Auer, one of the actual participants. They tended to establish the corpus delicti and to buttress the testimony of the juvenile participants. For an analogous situation see State v. O'Leary, 31 N.J. Super. 411, 417-418 (App. Div. 1954). The failure to connect defendant specifically with these tools by direct rather than circumstantial evidence goes to the weight of the evidence, not its admissibility. 1 Wigmore, Evidence (3 d ed. 1940) §§ 28-29. See, too, McCormick, Evidence, § 179, p. 384 (1954). Accordingly, we find no substantial merit in this contention of defendant.
Lastly, we deal with the appellate contention that the trial court improperly admitted in evidence a wallet and eyeglasses concededly belonging to defendant which the police of Plainfield and Scotch Plains testified were found in searches of the car after the apprehension of Auer and Guimaraes. The defendant objected to the admission of these articles at trial on
the ground that their discovery resulted from an illegal search and seizure, no search warrant having issued.
The State does not argue on this appeal that defendant should be barred from now raising the search and seizure point because he was remiss in not making a pretrial motion to suppress evidence, as required by R.R. 3:2A-6(a). But we think it appropriate that we notice the point in view of the fact that this was one of the two grounds on which the trial court overruled the objection by the defendant to the offer by the State of the wallet and eyeglasses in evidence, the other being his lack of standing to complain of the search and seizure. In opposing the objection, the State had relied only on the second ground, not the first. But in ruling, the trial court called attention to the absence of a pretrial motion and to its discretionary power under the practice rule nevertheless to excuse the failure to file a pretrial motion "if the court finds the defendant could not reasonably have made the motion prior to trial." It then ...