For affirmance and remandment -- Chief Justice Hughes and Justices Jacobs, Mountain, Sullivan, Pashman and Clifford. For reversal -- None.
[64 NJ Page 566] We affirm essentially for the reasons stated in the opinion of the Appellate Division, 128 N.J. Super. 90 (1973). However, we deem it necessary to elaborate
upon one ground of appeal as to which the Appellate Division said it was "deeply disturbed" and which it forcefully criticized but which was not the basis for its reversal. Unless we condemn such obvious error and unfairness on the part of a State's attorney, our silence may be interpreted as actual condonation. In our opinion, the following prejudicial statement alone is sufficient to warrant a reversal of the conviction and the granting of a new trial.
In his opening to the jury, defense counsel stated:
He was interrupted by the assistant prosecutor who said:
Excuse me, your Honor. I apologize for objecting during the opening of counsel, but that's not correct. Mr. Spano had the opportunity, if he so desired, to appear before the Grand Jury and give testimony. (Emphasis added).
Defense counsel did not object but immediately continued:
Well, that's true, I stand corrected. He could have appeared before a Grand Jury. But that's not a trial. And that's not a defense. And you only appear before a Grand Jury by the consent and invitation of the Prosecutor. If he doesn't want you to testify, you don't testify. He controls who testifies before the Grand Jury. But, be that as it may, what I said is today, under our wonderful system of justice, this is the trial.
The jury was receiving its first impression of the case and therefore it was strongly influenced by what transpired. The court did not interfere, nor were corrective or cautionary words forthcoming. The assistant prosecutor in effect said that the defendant, a police officer, could have come forward if he were innocent, but he was guilty since he failed to clear himself by appearing before the Grand Jury. The assistant prosecutor's contention is tantamount to a denial of the right of a defendant to remain silent. Griffin v. California,
The prosecutorial excess here is simply inexcusable. All concerned knew that no one appears before the Grand Jury unless he is subpoenaed or invited to testify in which event he must give his consent. And the wholly inappropriate apology of defense counsel in no way diminishes the seriousness of this error.
Despite defense counsel's failure to move for a mistrial, the prejudice flowing from the comment was definitely of such constitutional dimension as to rise ...