For affirmance -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For reversal -- None. The opinion of the court was delivered by Weintraub, C.J. Jacobs, J. (concurring in result). Justices Schettino and Haneman agree with the views expressed in this concurrence.
A jury convicted defendant of bookmaking in violation of N.J.S. 2A:112-3. He was sentenced to a term of one to two years and fined $1,000. We certified his appeal to the Appellate Division before it was argued there.
The first question is whether defendant's privilege of silence under the Fifth Amendment was violated by the prosecutor's opening statement to the jury.
In the voir dire examination of the jurors, counsel for defendant inquired as to whether greater credit would be given a policeman's testimony "as opposed to an ordinary man who would get up there and who would not be a policeman," and when a juror, upon further inquiry of him, said he would not, counsel for defendant echoed the juror by saying "you would tend to weigh their testimony the same way in your own mind." Obviously responding to this line of inquiry, the prosecutor, in his opening to the jury, said:
"* * * As counsel [for the defendant] pointed out, these are police officers and you are not to give any more weight to what they say than to what anybody else who comes in and testifies to, but, I ask you, what motive do they have not to tell the truth today? I ask you to consider that just as you would consider any testimony that the defendant might give."
Counsel for defendant moved at side bar for a mistrial on the ground that the quoted statement harbored the potential of an adverse comment if defendant should later decide not to testify. In fact defendant did not testify. Nor did he produce any witnesses.
It is evident that the prosecutor had no thought of anticipating defendant's decision not to testify. The prosecutor simply reacted to the defense inquiry of the jurors. The trial court denied the motion for a mistrial and instructed the jury at once, quoting the prosecutor's statement without embellishment and saying in part:
"Now, this statement by the prosecutor in his opening to you is not a proper statement. It is not proper comment and I am striking it from the record and I direct you to completely disregard this statement and not to take it into consideration at all. Treat it as a statement not having been made in this case. Dismiss it entirely from this case."
We gather that defense counsel withdrew the motion for mistrial after it was denied, explaining that "I was not really sure that the jury may have heard it or it sank in,"
and adding, although not by way of an objection, that he thought it would have been better if the trial court had said nothing to the jury.
We see no substance to the complaint. We think the defense was unduly sensitive to what the prosecutor said. In any event, if the jury understood the prosecutor's statement in that vein, the court's instruction was tantamount to a charge that no inference could be drawn from a defendant's failure to testify.
Lawyers seem unable to agree upon whether a trial court should say something with respect to a defendant's failure to testify. Some trial judges ask the defendant to state his wish. We have rejected a claim that it was "plain error" not to instruct a jury, on the court's own motion, that no inference may be drawn. State v. Aviles, 49 N.J. 192 (1967). In the present case, counsel for defendant seemingly holds another view of jury psychology, although he does not urge it was error for the trial court to speak on the topic. We see no error in either course, at least in the absence of a request by a defendant. Surely the Constitution does not stoop to choose between those competing views of jury behavior. In any event, we see no possible harm. Chapman v. State of California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2 d 705 (Feb. 20, 1967).
Defendant says there should have been a directed verdict of acquittal because, in his words, "There was absolutely no proof in this case that the appellant recorded or registered any bets given to him by the bettors. At best it could only be said that the bettors gave him bets previously written down by them."
Defendant contends State v. Morano, 134 N.J.L. 295, 299 (E. & A. 1946), supports his position. This is too literal a reading of that opinion. The statute, N.J.S. 2A:112-3, speaks of a person who "makes or takes what is
commonly known as a book." The offense resides in the gambling aspect of the bookmaker's operation, rather than in the method whereby he keeps track of the wagers. It makes no difference whether the bets are committed to paper or to memory, and ...