On appeal from Union County Court.
Conford, Matthews and Fritz. The opinion of the Court was delivered by Conford, P.J.A.D.
[126 NJSuper Page 71] Defendant was indicted for the murder of one Farrell and was convicted by a jury of manslaughter.
Of several points of appeal argued we find one to have merit -- that the court over objection excused a defense witness from testifying on a purported claim of privilege of self-incrimination advanced by counsel for the witness without requiring the witness himself to take the stand and refuse under oath (or affirmation) to claim the privilege for stated reasons.
Defendant accosted Farrell on the street while Farrell, with a knife in his hand, was apparently menacing another person sitting in a parked car. The shooting followed momentarily thereafter. Defendant had arrived at the scene in a car with one Figone (the witness mentioned above), had addressed Farrell with a demand for money the latter assertedly owed him, and then, according to defendant's testimony, when Farrell raised the knife toward him, defendant's gun went off, resulting in the fatal wounding of Farrell. The State, however, adduced testimony from which the jury could have concluded that the shooting was not a justified act of self-defense.
Figone had been called as a witness before the grand jury and, after being informed by the prosecutor that he had a privilege of not incriminating himself, testified he knew nothing about the shooting until defendant told him about it later that day. He had loaned defendant his car but was not with him at the time.
Defendant contends that a week or so before the trial, when the prosecutor learned from the defense that Figone was to testify for defendant, he had him indicted for the murder, obstructing justice, aiding defendant to escape apprehension and perjury. Figone was confined in jail on these charges when called as a witness.
In the course of its case the defense called Figone as a witness. The court promptly excused the jury. The judge then inquired of the witness whether he had counsel, and the latter responded he had consulted with counsel (Mr. Metro) who had advised him to "testify to the truth." When the court
pressed the witness as to whether counsel advised him to testify, the witness said:
I think it's right that I should testify, not that he advised me. I think it's right that I should tell the truth.
The judge expressed the view that in view of the "very serious charge" against Figone, Mr. Metro should be given the opportunity of telling the court "his position * * * in this case." Defense counsel advised the court she had informed Mr. Metro the day before that she was calling Figone as a witness and he had said he had no objection. A recess was called during which the judge phoned Mr. Metro and ascertained the latter desired to be present during any testimony he might advise the witness to give. The case was recessed (on a Friday) to permit Mr. Metro to be present the following Monday morning.
On the resumption of the trial on Monday the defense called Figone again, and the court again excused the jury. On inquiry by the court, Mr. Metro stated he was advising the witness not to testify on grounds of self-incrimination. Figone answered "yes" to the court's question whether he understood that counsel was advising him not to answer any questions which might incriminate him. But the witness was not asked whether he would himself invoke the privilege not to incriminate himself. The prosecutor suggested there be a voir dire interrogation of the witness out of the presence of the jury, and the court acceded, in order to "see if the questions are permissible." No one, including Mr. Metro, objected to the procedure.
Defense counsel proceeded at once to question Figone as to his knowledge concerning the shooting. At the first question, Mr. Metro stated he was advising his client not to answer. The court directed the witness to answer the questions. Thereupon the witness, over periodic continuing objections by Mr. Metro, testified he was present at the ...