Allcorn, Kole and E. Gaulkin. The opinion of the court was delivered by Edward Gaulkin, J.A.D., Ret., Temporarily Assigned on Recall.
Defendant was convicted by a jury of robbery (Count 1), robbery while armed (Count 2), and the unlawful possession of a pistol without the requisite permit, in violation of N.J.S.A. 2A:151-41(a) (Count 3). On February 25, 1974 the trial judge sentenced defendant to consecutive sentences in State Prison, 2 to 3 years on count 1, 1 to 2 years on count 2, and 1 to 2 years on count 3, totaling 4 to 7 years, all consecutive to a sentence which defendant was to serve on an unrelated conviction. Defendant's counsel argued that count 3, the unlicensed pistol charge, merged in count 2 and therefore a separate sentence upon count 3 was without basis. After considering the matter, the judge, on February 28, 1974, vacated all three sentences and sentenced defendant anew. This time he reimposed the sentence of 2 to 3 years on count 1, but increased the sentence on count 2 to 2 to 4 years, again consecutive as before and consecutive to the sentence being served. Although he did not squarely so hold, he seemed to rule that there was no merger of counts 2 and 3; nevertheless, he said he would impose no sentence upon count 3.
Defendant's first ground of appeal is that the judge erred "when it did not permit the defendant to call a witness in his behalf." To investigate the validity of this ground of appeal we must determine (1) whether defendant did ask that he be permitted to call a witness and (2) if he did, was the judge obliged to permit him to do so. We find that defendant did not ask that he be permitted to call a witness; what he asked was that the judge direct the prosecutor or his own attorney to do so, and we hold that the judge properly refused the request.
The witness in question was one Jose Perez, also known as Carabello. He was named in the indictment as a co-defendant with Pratts, but apparently had pleaded guilty. Pratts was tried alone.
After the State had rested, Mr. Jacobs, defense counsel, asked for and was granted a recess to interview Carabello and to consult with defendant as to whether Carabello should be called and whether defendant himself would testify. Jacobs' strategy up to that point was to resist, attack and cast doubt upon the evidence offered by the State to identify defendant as one of the two robbers, and to create doubt in the minds of the jury that defendant was a participant in the robbery; and the record shows that he did it very effectively. (A previous trial on the same indictment resulted in a hung jury).
Jacobs had interviewed Carabello, who was in custody, and had intended to call him as a witness. However, he told the judge that the prosecutor
The judge replied that he would have Carabello brought over "as quickly as possible and I will give you ten minutes with him. We will keep on going."
The jury was then excused and, since the State had rested, the judge asked whether counsel proposed to make any motions. Jacobs replied "There is a motion" but "I would rather get with the other. * * * I want to have the testimony and decide where we are going today." The judge replied, "I don't want to take too much time with delay," and agreed to "hold the motion until tomorrow" so that the taking of testimony could be concluded that day.
Jacobs then interviewed Carabello and conferred with Pratts. He then reported to the judge that "We are not going to present any testimony," and that defendant rested.
There followed a discussion between counsel and with the judge about the admission and the editing of certain writings referred to during the trial. The judge said he would rule on those matters the next day. Then, this followed:
MR. FORMAN [Prosecutor]: It is my understanding the defense rested, your Honor.
THE COURT: Defense rests?
MR. FORMAN: I will call some additional witnesses.
MR. JACOBS: Now so we understand clearly, there are no other witnesses to be called in this matter? Because I just heard Mr. Forman say he is going to call some witnesses.
THE COURT: By making that statement, I assume that he had some rebuttal witnesses on call. Therefore I am not going to permit you to open your case for any further witnesses, Mr. Jacobs, under those circumstances as long as Mr. Forman is not prepared to have anybody come in.
MR. JACOBS: Judge, I understand that.
THE COURT: Does that also apply to the prosecutor?
MR. FORMAN: My case is rested.
THE COURT: As far as I am concerned this case is at an end.
The judge then recalled the jury and said:
Ladies and gentlemen, we are going to recess until tomorrow morning to resume at 9 o'clock. The matter of testimony has just been concluded. There will be no additional testimony offered by either the State or the defense and therefore we intend to and expect to start tomorrow morning with summations and charge of the court.
The following morning Jacobs reported to the judge that he was having a disagreement with his client and he "asked * * * to be permitted to state something on the record." The judge having given his permission, and the prosecutor having left the courtroom, counsel told the judge that Pratts wanted Carabello called as a witness but that he believed he should not be called because
In my opinion the man would be a very bad witness and would give no exculpatory information. His testimony would be more damaging than it would be beneficial to my case. I therefore decided not to call him. I then returned and explained that to Mr. Pratts and gave him the further advice that under the circumstances he should not testify. * * * In my opinion Carabello should not be called as a witness. Pratts should not testify. I gave Mr. Pratts that advice yesterday. I gave it to him in the presence of his wife and his mother. I asked him to think it over and I advised him rather strongly, I will admit, not to testify for a number of reasons, which I don't feel I have to go into now.
Apparently, it was after this conference that counsel and defendant agreed, the day before, not to put in any more testimony and to rest.
Mr. Pratts has returned to court today. He is upset, apparently, with my representation, as he has been, through most of the trial. He feels now that Carabello ought to be called as a witness. I told Mr. Pratts I will defer to his wishes, but I want to state for the record at this time calling Carabello as a witness and framework (sic) or admitting that ...