Wingate, J.c.c., Temporarily Assigned.
[145 NJSuper Page 161] This matter is before the court upon a novel issue raised upon a motion for a new trial. It is urged that certain prosecutorial comment
about defendant's presence during the trial and his ability to hear the State's witnesses which enabled him to "comport" his testimony to that of the State's witnesses, was in effect an infringement upon his constitutional rights under the Sixth Amendment to be present at the trial and confront the witnesses against him. This right is also assured him by N.J. Const. (1947), Art. 1, par. 10.
There appears to be no state or federal case which has considered and resolved this problem. Unfavorable comment about such prosecutorial remarks was made by way of dictum in the case of State v. Eason , 138 N.J. Super. 249, 259 (App. Div. 1975), although that case was not resolved upon this issue.
In the present case the prosecutor, in summation, made the following comment:
He was sitting here while Mr. Buniak testified. Mr. Buniak told us he used a specific mortar, a specific color in making mortar. It was kind of his trademark. When I asked Mr. Robinson about that, he said he used the same color. He had the ability to sit here and listen to the other witnesses testify and * * *
Thereupon defense counsel objected and at sidebar explained his reasons, claiming the remark infringed on defendant's right to be present at the trial. The prosecutor urged it was fair comment on the credibility of defendant. Defendant's objection was not sustained nor any instruction made by the judge to the jury, except that the prosecutor was advised not to elaborate or extend his remark any further.
After the sidebar conference the prosecutor continued his summation with the following remarks:
Excuse me, ladies and gentlemen. As I was saying, I think it's interesting to note that his story, Mr. Robinson's story, when he was testifying from the witness stand comported with the other stories that were presented in a way which I would point at and say it looks incredible to me. It doesn't look credible. It looks nonbelievable. It looks like something fabricated.
It is urged that the above remarks were directed solely to the credibility of defendant's testimony which is always subject to fair comment, citing State v. Plowden , 126 N.J. Super. 228 (App. Div. 1974), certif. den. 64 N.J. 504 (1974). While that may be so (assuming there is a factual basis for such comment), this certainly cannot be a license to infringe upon fundamental constitutional rights of a defendant.
Our criminal jurisprudence is bottomed upon the basic and fundamental constitutional guarantees against self-incrimination (the right to be silent) and the right of confrontation, as contained in the Fifth and Sixth Amendments of our Federal Constitution.
State v. Deatore , 70 N.J. 100 (Sup. Ct. 1976), is indicative of the extent to which our courts are concerned about a defendant's right of silence under the Fifth Amendment "even though it might be said that the evidence of guilt was so strong that any trial error in this regard was harmless beyond a reasonable doubt." A defendant has the constitutional option of remaining silent and relying upon his presumption of innocence, or of testifying and subjecting himself to the trial hazards of a thorough but proper cross-examination. That right of silence has ...