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State v. Felton

Decided: December 9, 1974.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
LEE ARTHUR FELTON, DEFENDANT-APPELLANT



Michels, Morgan and Kentz. The opinion of the court was delivered by Morgan, J.A.D.

Morgan

Defendant appeals from his conviction upon a two-count indictment charging him with robbery, N.J.S.A. 2A:141-1, while being armed, N.J.S.A. 2A:151-5, contending that reversible error was committed when the prosecutor, in the presence of the jury, made repeated references to the fact that defendant's confederate, one Thomas Williams, had been indicted and convicted for the same crime. Williams did not testify at defendant's trial.

James Melvin, the alleged victim of the robbery, testified that as he left a local poolroom and proceeded to his car in the late afternoon of December 28, 1972, he was accosted by two men with knives, later identified as Felton and codefendant Williams, who forced him into the front seat of

his car where he then sat between the two of them. Once in the car, Williams took $65 from him. Melvin maintained that he had seen defendant earlier in the day.

Thereafter, the three of them drove around for a short period of time during which time Williams allegedly suggested killing Melvin, a suggestion rejected by Felton who expressed the thought that since he had worked with Melvin, Melvin would not tell anyone about the incident. Accordingly, Melvin was released. Once home, Melvin called the police and an unsuccessful search for the assailants ensued. Back at the police station Melvin was told to come back later because he had had a few drinks. Subsequently, Melvin selected defendant's picture from a book of photographs.

Two officers from the Paterson Police Department confirmed Melvin's testimony concerning the search for the assailants and the circumstances in which the photographic identification of defendant was made. The only other evidence introduced on the State's case consisted of testimony confirming that defendant had previously worked with Melvin at Barney's Furniture Store. The State then rested its case.

Felton testified that he and Melvin had known each other previously and had in fact gone drinking together on several occasions. On a prior occasion Felton had loaned Melvin $10 and Felton's requests for repayment of the loan had gone unheeded for three weeks. On the day in question Felton had entered Melvin's car at Melvin's request and the two of them began drinking a pint of liquor which had been left under the seat of Melvin's car. They then had dinner and after returning to the poolroom Felton continued to dun Melvin for repayment of the $10 loan. Melvin finally gave Felton $2, promising to repay the balance at a later time. This part-payment did not apparently satisfy Felton since an argument concerning the unpaid balance ensued during which Williams joined them and asked for a ride home. Melvin did the driving and all three of them were intoxicated. Melvin and Felton continued to argue about the money and this argument soon

led to a fistfight which Williams aided in terminating. Melvin received a bloody nose in the affray and gave Felton $10. After threatening Felton, Melvin departed.

It was on cross-examination of Felton that the prosecutor made the references to the fact that Williams had been indicted for the Melvin robbery and that he had in fact been brought to justice. After examining Felton concerning Felton's knowledge that Williams had been indicted for this robbery, the following transpired:

Q. A man who according to what you told the ladies and gentlemen of this jury several minutes ago is completely innocent of the armed robbery he had been indicted for, just as you are, isn't tha correct?

A. That's right.

Q. Are you aware that he was brought to trial and brought to justice earlier this year in August?

At this point the trial judge intervened, and defendant's counsel registered an objection. The judge sustained the objection although no curative instruction was given to the jury. The prosecutor, nonetheless, continued to inquire of Felton as to his knowledge concerning the fact that Williams had been indicted for this very robbery.

Q. Are you aware, Mr. Felton, that your friend went along for the ride, his case has been disposed of prior to yours; are you aware of that?

A. No.

Q. You're not aware of that?

A. No.

Q. Your attorney hasn't told you that?

MR. MILLER: Objection your Honor, to communication between ...


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