Conford, Collester and Labrecque. The opinion of the court was delivered by Collester, J.A.D.
Defendant Robert Cullen, together with James Moran and Joseph Baranowski, was indicted for (1) armed robbery of Larry Dinnerman at the Marion Inn in Cinnaminson Township on May 25, 1964, (2) armed robbery of Edwin Woolman, the manager of a drive-in theater in Edgewater Park, on April 6, 1964, and (3) on two counts for carrying concealed weapons during the robberies. Prior to defendant's trial Moran pleaded guilty and was sentenced to prison; Baranowski was not required to stand trial because he had been committed to a mental institution in Philadelphia. Defendant was tried on the three indictments and found guilty of the robbery and concealed weapon charge which took place in Cinnaminson Township. He was acquitted on the indictments charging him with armed robbery and carrying a concealed weapon in Edgewater Park. Following a denial of his new trial motion defendant appealed.
The paramount issue raised on appeal is whether defendant sustained prejudicial error because the prosecutor was permitted to cross-examine two state witnesses, John O'Brien and James Moran, in the presence of the jury, after the court and prosecutor had been informed that such witnesses intended to recant statements previously given by them to the police.
The record indicates that at the beginning of the trial defense counsel informed the court and prosecutor that he anticipated that "a State witness or two will recant." He
requested the court, in such event, to invoke the procedure suggested in State v. Guido, 40 N.J. 191, 199-200 (1963), namely, that such witnesses be examined out of the presence of the jury. The court agreed that defendant would be accorded such protection. The record further reveals that at a pretrial motion and during the course of the trial defense counsel informed the court and prosecutor that Moran would recant if called as a witness by the State.
O'Brien was subsequently called as a witness for the prosecution. He had not been named as a defendant in the indictments and had previously been convicted and sentenced to prison for committing an armed robbery in Trenton. After testifying that he was confined to State Prison and knew defendant slightly, O'Brien refused to answer all questions propounded by the prosecutor on the ground that his answers might incriminate him.
Thereafter, despite the court's previous assurance that defendant would be protected under the guidelines laid down in State v. Guido, supra, and defendant's continuing objections, the court permitted the prosecutor to cross-examine O'Brien at length in the presence of the jury. O'Brien continued to invoke his Fifth Amendment privilege. The prosecutor, through leading questions which were unanswered, clearly indicated to the jury that O'Brien had given a statement to the police in which he admitted that following the robberies he delivered a suitcase to defendant's brother-in-law to be turned over to defendant, and that the suitcase contained clothing allegedly worn by the robbers and an attache case in which the guns used in the robberies were secreted. (We also note that during colloquies between counsel and the court relating to such cross-examination the prosecutor frequently referred to O'Brien as a defendant).
Despite previous notice given to the court and the prosecutor that Moran would also recant a statement he had given to the police, the State called Moran as a witness. Moran also refused to answer questions, claiming the protection of the Fifth Amendment. Moran's refusal to testify
and a substantial part of the argument relating to the prosecutor's contention that Moran should be compelled to testify took place in the presence of the jury.
The practice of calling a codefendant (Moran) as a witness where the prosecution has knowledge that the witness will claim his privilege against self-incrimination has been condemned because it operates to prejudice defendant in the eyes of the jury. See Annotation "Prosecution -- Accomplice As Witness," 86 A.L.R. 2 d 1443, 1446-50 (1962), and see cases supplementing the Annotation in 6 Later Case Service A.L.R. 2 d (1966). The procedure to be followed in such a case is set forth in State v. Fournier, 91 N.J. Super. 477, 480-81 (App. Div. 1966). When the prosecutor knows or has good reason to believe that the witness will claim his privilege against self-incrimination he should inquire of the witness in advance as to whether the witness intends to testify if called and then inform the court and defense counsel of the result of his inquiry before calling upon the witness to testify in the presence of the jury. If he desires to test the witness' intent, the prosecutor should call the witness to the stand and question him out of the presence of the jury. The same procedure should be followed when the prosecutor is advised in advance that the witness intends to testify contrary to a previous statement given to the authorities. State v. Guido, supra.
Here both the court and prosecutor were notified by defense counsel at the outset of the trial that a "State witness or two" would probably recant. They were further informed specifically prior to and during the trial that Moran would probably do so. Thus, insofar as Moran is concerned the procedure set forth in Fournier should ...