Defendant Michael Guibilio has moved for severance in the trial of an indictment charging armed robbery, in which he is a codefendant with Raul Montesdeoca. It has been indicated that defendant Montesdeoca, will most likely testify in his own defense whereas defendant Guibilio will not. According to the brief of Guibilio's attorney and essentially confirmed by Montesdeoca's attorney at oral argument, Montesdeoca is expected to testify that on the night of the alleged robbery he saw Guibilio at the scene of the robbery in the presence of one of the victims shortly before the crime. Montesdeoca has no prior criminal record, but Guibilio has an extensive prior record including convictions for robbery.
It should be stated at the outset that we are not dealing here with a situation such as contemplated by R. 3:15-2 in which the State intends to introduce at trial a statement, confession or admission of one defendant inculpating another defendant. The assistant prosecutor represented at oral argument on this motion that the State would not introduce any such statement. If it did intend to do so a severance would clearly be required unless effective deletion
could be made. State v. Barnett , 53 N.J. 559 (1969); State v. Young , 46 N.J. 152 (1965). The good reason for this rule is that a statement standing alone cannot be cross-examined.
It's true that if a severance is granted the jury would not hear Montesdeoca's evidence, which can be damaging to Guibilio, but Guibilio has no constitutional right to have that damaging evidence withheld. "The constitutional right is to remain silent; it does not shield a defendant from the evidence against him or the compulsion it generates." State v. Garvin , 44 N.J. 268, 278 (1965).
Certainly, there would be no legal impediment to the State granting Montesdeoca immunity and using him as a State's witness against Guibilio. In that event Guibilio could no more shut off Montesdeoca's adverse testimony than he could bar an identification witness because his testimony would prove damaging. Since Montesdeoca could surely testify as a State's witness, there appears to be no need for a severance to prevent him from testifying in his own behalf in a joint trial. As has recently been said by the Appellate Division in State v. Morales (decided December 22, 1975), "a separate trial should not be allowed merely because it would offer defendant a better chance of acquittal."
A more troublesome aspect of this case is that defendant who expects to take the stand has no prior criminal record while defendant who does not plan to do so has an extensive and serious one. It is clear that the former's lawyer will be permitted in his summation to refer to the fact that his client voluntarily testified although under no legal compulsion to do so. It is equally clear that he will not be permitted to state or imply that the other defendant's failure to testify creates any inference of his guilt or acquiescence to the testimony of his codefendant. State v. Lanzo , 44 N.J. 560 (1965); State v. Aviles , 45 N.J. 152 (1965); State v. McLaughlin , 93 N.J. Super. 435 (App. Div. 1967).
The law in New Jersey does not require a severance where there are joint defendants, one with a criminal record and
the other without such a record. Our courts have never gone that far. Aside from the line of cases involving confessions or admissions, severance has been mandated only in case of unusual circumstances in which the fact that one defendant took the stand and another did not was but a single factor in a general pattern of prejudice. State v. Sinclair , 49 N.J. 525, 550 (1967). That case repeated the often stated holding that "a wide range of discretion necessarily reposes in the trial judge" with regard to a motion for severance. This emphasis on judicial discretion was repeated in State v. Laws , 50 N.J. 159 (1967), in which our Supreme Court refused to disturb a denial of severance in a case involving joint defendants. See also, State v. Mayberry , 52 N.J. 413 (1968).
If severance is not granted, Guibilio's counsel will, of course, have the complete right of vigorous cross-examination of the codefendant. Also, if Guibilio so wishes, he may choose voluntarily to testify in his own behalf. If he does, however, he will open the way for a disclosure of his criminal record to test his credibility. N.J.S.A. 2A:81-12; State v. Hawthorne , 49 N.J. 130 (1967). The choice is not a pretty one, but persons who have in the past opted for a life of crime do not usually leave themselves with pretty choices. We should not add to the backlog in our criminal calendars by holding separate trials in joint defendant cases because one codefendant may find his prior record to be burdensome. Furthermore, we do not usually know in advance of trial whether a codefendant will testify, let alone what he will say. By granting a severance in this case where we do know, we will be opening the door to endless mistrials in cases where a defendant professes to be surprised and aggrieved at trial by his codefendant's testifying.
Counsel for Guibilio has not cited any New Jersey cases in his argument for a severance, but he relies heavily on De Luna v. United States , 308 F.2d 140 (5 Cir. 1962). In that case, in which the factual pattern is close to the case now under ...