For reversal and remandment -- Acting Chief Justice Jacobs, Justices Hall, Sullivan, Pashman and Clifford and Judges Conford and Collester. For affirmance -- None. The opinion of the Court was delivered by Conford, P.J.A.D., Temporarily Assigned. Sullivan, J. (concurring). Sullivan, J., concurs in result.
Defendant was convicted of atrocious assault and battery, assault with an offensive instrument and possession of a dangerous knife. He was sentenced to from five to seven years in prison on each count, the terms on the last two counts to be served concurrently, but consecutively to the term on the first count. The Appellate Division affirmed in an unreported opinion. We granted certification, 63 N.J. 567 (1973). We were concerned over a possible injustice in the failure of adduction at the trial: (a) of the fact that another person had prior to trial confessed under oath before the trial judge that he, not the defendant, had committed the crimes; or (b) of direct testimony by that person that he rather than defendant committed the crimes. We find such an injustice in the case and deem it substantial enough to warrant a reversal and direction for a new trial.
The incident giving rise to this prosecution grew out of an altercation between the victim, one Michael Nigro, and a party of four persons consisting of defendant, his cousin Sylvester Roseboro, his brother-in-law Alexander Durham, and his girl friend Patricia Naylor, in the very early morning of September 5, 1971 in Elizabeth. The defendant accosted Nigro as he sat in his parked car and asked for a ride for the group, defendant's version being that they wanted transportation to a restaurant, that he agreed to pay Nigro two dollars for the ride, and that all four got into the car. Nigro testified he refused the ride but all four got into the car nevertheless. When he persisted in his refusal he was
pulled onto the sidewalk and punched in the face by defendant and one of the other men. He saw defendant take out a knife and he ran, whereupon he was stabbed twice, once in the shoulder and once in the hip. Another prosecution witness also testified he saw defendant pursuing Nigro with a knife. The victim was severely injured and required a colostomy.
Defendant testified that as he was about to pay Nigro the two dollars Roseboro said it was too much and Nigro ordered them all from the car. He then saw Roseboro and Nigro arguing on the sidewalk and begin exchanging blows. Roseboro suddenly stabbed Nigro with a knife. Defendant grabbed Roseboro's arm, took the knife away from him and put it in his own pocket. All four ran away, defendant going to the home of his aunt, Roseboro's mother, to await the others. Miss Naylor substantially corroborated defendant's version of the incident. Durham was not called at the trial because he could not be found. Roseboro's involvement with the trial is discussed infra.
Roseboro, Durham and Naylor were apprehended by the police not far from the scene and brought to the hospital where Nigro was being treated. According to one of the arresting officers, Nigro stated that the three were part of the group involved in the incident but that the one that stabbed him was missing. According to Naylor, Nigro identified Durham as the person who attacked him with the knife.
When informed at the hospital that the group would have to go to police headquarters, Roseboro became upset and told the police that his cousin was the assailant. The police proceeded to Roseboro's house and apprehended defendant with a knife in his jacket pocket. The knife was later determined to have traces of blood on it. Defendant was taken to the hospital where, according to the arresting officer, he was identified by the victim as the man who had stabbed him. Defendant, however, testified that when Nigro was asked if defendant was the one who knifed him, he replied, "No. He's one of them."
At headquarters defendant gave the police a statement, which he refused to sign, indicating that Roseboro was the assailant. Roseboro provided a statement inculpating defendant. Durham told the police that he did not see any knife but did see defendant hit Nigro "a few licks" and then observed blood on Nigro's jacket as defendant chased him. Patricia Naylor gave a statement in which she said she did not see anything happen at all; but she testified that not everything she had told the police was contained in the statement and that she had informed them that the knife they found was Roseboro's and that Roseboro had done the stabbing.
There was conflicting testimony as to the degree of illumination on the dark street at the time of the occurrence. Jamison and his companions were young blacks, all the males with "Afro" hairstyles. The testimony most supportive of defendant's version of the incident concerned his and Roseboro's clothing. Nigro testified repeatedly and emphatically that his assailant was not wearing a suit but a brown or maroon sweater with a white line. However, all of the other relevant testimony elicited at the trial, including that of the arresting officer, was that defendant was wearing a suit. He appeared to have worn matching pants and jacket, a shirt, perhaps a tie, but no sweater. Defendant and Naylor testified that Roseboro wore no suit, but a sweater, described by defendant as a brown sweater with a white stripe.
During a recess while the trial jury was being chosen on February 14, 1972 counsel for the defendant and the assistant prosecutor asked the judge for a special hearing. This was prompted by the fact, as related to the court by the defense attorney, that he and the assistant prosecutor were approached that morning by Roseboro, who had been designated by the defense as a potential defense witness, with the information that Roseboro intended to take the witness stand and testify that he, not the defendant, had stabbed Nigro. He was said to have told them: "I don't want to see someone blamed for something I did." The judge was told that Roseboro, in the presence of a deputy sheriff, was promptly
informed by the attorney and the assistant prosecutor of his constitutional rights under the Miranda case; and that he still wished to come forward voluntarily and testify to the stated effect. The judge was further told that no coercion was used on Roseboro, that he was intelligent and had a high school education and that the attorneys had felt that they should bring Roseboro before the court "in the interest of justice".
The judge then addressed Roseboro, who was first sworn, stating that before asking any questions he "[wished], of course, to see that you have independent counsel". The judge noted (a) that the charge against Jamison was serious; (b) his understanding that Roseboro wished to enter a plea of guilty, had confessed to the offenses, and asserted Jamison's innocence; (c) although wanting the truth, his desire not to have an innocent person "pleading to something he did not do" and (d) the necessity for counsel prior to entry of a plea. Roseboro told the judge: "Everybody have a mind to speak, you know, how they feel."
The court then elicited affirmative responses from Roseboro as to the fact that he had previously given a statement to the prosecutor naming Jamison as the perpetrator and as to his understanding that a plea of guilty or a contrary statement under oath would be false swearing. Roseboro further answered in the affirmative questions from the court as to whether it was his desire to plead guilty and whether he had told the truth when he told the attorneys that he (Roseboro), and not Jamison, had committed the acts in question. Roseboro also responded in the affirmative to questions by the judge with regard to whether he was fully informed (a) that his statements would be used against him; (b) that he had a right to assigned counsel; (c) that he had a right to remain silent; and (d) that he could receive 21 years for the offenses and would "probably" be so sentenced if before this judge. The judge again informed Roseboro that he should have the benefit of counsel before entering a guilty plea and he directed
that a public defender come to the courthouse at once to advise Roseboro.
After a recess, the assistant public defender designated to represent Roseboro, a Mr. Hansen, told the judge that after conferring with him Roseboro was retracting his former statement to the court, was denying any part in the stabbing, and was stating that his prior remarks to the court were not the truth. Thereafter, the judge directed the assistant prosecutor to investigate possible obstruction of justice and false swearing by Roseboro and to bring these matters to the attention of the grand jury if necessary.
At the suggestion of the assistant prosecutor, the judge inquired directly of Roseboro as to his change of mind. In response to a series of questions from the bench, Roseboro now denied that he had committed the acts. Reiterating that Roseboro might be guilty of perjury or obstructing justice, the judge detained Roseboro under $1,000 bail and directed the assistant prosecutor to move the charge of attempting to obstruct justice. Roseboro was thereupon confined in the county jail where he apparently remained through the trial.
During an interruption of the trial the court conducted an arraignment of Roseboro out of the presence of the jury but on the trial record. Roseboro, by assigned attorney Hansen, entered not guilty pleas on charges of making contrary statements under oath and of obstructing justice in the Jamison case, and the matter was set down for a preliminary hearing. Bail was continued at $1,000.
On two subsequent occasions during the trial defense counsel alluded to his intent to call Roseboro as a witness. The State took the position that if this were done it should be by voir dire because of the possibility that Roseboro might invoke the Fifth Amendment, citing State v. Cullen, 103 N.J. Super. 360 (App. Div. 1968) and State v. Guido, 40 N.J. 191 (1963). The defense raised no objection, and the trial judge on both occasions stressed that he would insist on Mr. Hansen being present to represent Roseboro since the latter had perjury and obstruction of justice charges pending
and could "take the Fifth" also by reason of possible implication in the Nigro matter.
Roseboro was called as a witness for the defense to testify on voir dire, as previously arranged. After he was sworn but before any interrogation by the defense, the trial judge stated that he understood that the "defendant" (Roseboro) had been "advised of his constitutional rights respecting self-incrimination", but that the court would permit some questions from defense counsel,
in order that the Court may properly establish that the questions do come within the purview of the incriminating statements in order that he invoke or determine whether or not he can ...