Conford, Kolovsky and Carton. The opinion of the court was delivered by Kolovsky, J.A.D. Conford, P.J.A.D. (concurring).
[112 NJSuper Page 413] Defendant was found guilty at a jury trial of having robbed one Gregory Green of $63 and appeals from the judgment of conviction.
The State's proofs were that defendant was one of a group of five young men who attacked the 18-year-old victim on June 30, 1968 and that it was defendant who held a knife to the victim's throat and took some $63 from his pocket. Shortly after the robbery, as Green, his father and two policemen cruised through the area in a patrol car, Green spotted the group who had robbed him. The suspects fled; the police apprehended only defendant Gray, who was then and there identified by Green as the man who held the knife. A knife was found on Gray's person.
Defendant argues a number of reasons for reversal. Only one warrants any extended discussion.
There is no merit in the claim that it was plain error to admit evidence of the pretrial identification of defendant "contrary to the principles of United States v. Wade [388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967)]." The point is not available on appeal since no objection to the identification testimony was offered at the trial. Moreover, Green's identification of defendant immediately after he was apprehended by the police was an on-the-scene identification to which Wade does not apply. State v. Satterfield , 103 N.J. Super. 291 (App. Div. 1968).
Equally lacking in substance are the contentions: (1) that the State had failed to make out a prima facie case; (2) that (a) comments by the prosecution in summation, (b) a nonresponsive answer by a defense witness -- which was promptly stricken by the court -- with respect to defendant's escape from custody, and (c) admission of evidence that defendant was not employed at the time of the offense, deprived him of a fair trial, and (3) that because the indictment did not charge defendant with armed robbery, it was error to permit proof that a knife was used in the robbery.
Defendant's principal attack is on the trial court's ruling which permitted Green to testify on redirect examination as to conversations between himself and defendant's girlfriend, Ida Belle Hunter.
Green was the first witness called by the State. His testimony began on the first day and was concluded on the second day of the trial. Although he had stated positively to the police, both at the time of the on-the-scene identification and in a written statement, that it was defendant who had come behind him, put a knife to his neck and extracted $63 from his pocket, in his direct testimony on the first day of trial he equivocated. The equivocation continued when the jury returned to the courtroom after a recess during which, in the presence of the judge, the witness was questioned with respect to his written statement.
On the first day that he testified Green said that defendant "appeared to be" the person who committed those acts; "I got sort of like a glimpse [at this fellow] but I am pretty sure"; "I am not too sure whether he was the one who had the knife or not," but he is the one who demanded the money and took it from my pocket; "I could not see because I was caught from behind"; as the group left, "I turned around."
The following morning's session began with a colloquy in the absence of the jury, at the conclusion of which the judge ruled, over defendant's objection, that his order of sequestration required the exclusion from the courtroom during the State's case of witnesses whom defendant proposed to call, specifically Ida Belle Hunter, an alibi witness. Miss Hunter had been in the courtroom when Green began his testimony on the previous day and had remained there until the prosecutor requested, following the witness' statement that "he got a glimpse of the fellow," that she be directed to leave the courtroom.
When Green resumed the stand on the second day of trial his identification testimony was no longer uncertain. He had turned around when defendant released him so that he was standing face to face with defendant, who wore a blue fishnet shirt and yellow pants. Green made a "positive" in-court identification of defendant; ...