Gaulkin, Lewis and Labrecque. The opinion of the court was delivered by Gaulkin, S.j.a.d.
Defendants were convicted of robbery and they appeal.
McNair's sole ground of appeal is that his trial counsel was incompetent and ineffective, particularly in that counsel "failed to examine complaining witness on vital points." We have studied the transcript of the trial and we find no merit in this contention. State v. Dennis, 43 N.J. 418, 428 (1964).
Defendant McLaughlin's first ground of appeal is that the trial court erred in denying his motion for judgment of acquittal at the close of the State's case. Our examination of the evidence as it stood when the State rested satisfies us that the motion for acquittal was properly denied. There was ample proof of the robbery, and Braddy's testimony implicated McLaughlin more than enough to withstand the motion. As to this, McLaughlin argues that "When the witness Braddy testified as to his own implication in the crime by counselling both defendants and receiving $3,000 of the proceeds, his testimony became incredible * * * so unbelievable [that] it should not have gone to the jury * * *." Not so. Braddy's credibility was nevertheless for the jury.
McLaughlin's major argument is that his motion for a mistrial should have been granted when McNair's lawyer (not his present one), during summation, commented upon
McLaughlin's failure to take the stand, and the judge's halting of the comment and instructions to the jury to disregard the comment did not cure the error or the prejudice.
McNair testified that McLaughlin perpetrated the robbery without his knowledge, and that he was merely an innocent passenger in McLaughlin's car. In his summation McNair's attorney said:
"This is the crux of the case because if Harold McNair is telling the truth in relation to how Oswald McLaughlin came into his house and said what he did say, he said, 'Let's go for a ride,' and took him for a ride and then this thing occurred, why didn't McLaughlin get up and deny that?"
McLaughlin's retained trial attorney objected and moved for a mistrial. The following ensued:
"THE COURT: That is not a proper comment, Mr. Bercik [attorney for McNair].
The Court will instruct you, ladies and gentlemen of the jury, that every defendant has a right in any case in which he is accused not to appear as a witness and not to testify. This comment the Court has ruled improper. You are instructed to disregard it. Do ...