Yanoff, J.c.c. (temporarily assigned).
The issue involved is the extent to which a trial judge may control his list.
The charge against the three defendants is felony murder. Defendants Sylvester Scovil (Scovil) and Leroy Williams (L. Williams) each signed a confession which implicated the other, and defendant Roy Lee Williams (R. L. Williams) also made a statement, which he did not sign and which, apparently, neither admits guilt nor implicates the other two.
When the matter came before me for trial, the prosecutor moved for severance and separate trial as to each defendant under R. 3:15-2 and Bruton v. United States , 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968). Since Scovil's and L. Williams' statements implicated the other defendants, and since all parties agreed that the statements could not be redacted, separate trials were ordered.
Thereupon the attorneys for defendant Scovil and L. Williams moved that R. L. Williams be tried first, on the ground that he would be a witness at their trials and that he could not constitutionally be compelled to testify until his matter had been terminated. The attorney for R. L. Williams did not object to this order of trial, but the assistant prosecutor objected vehemently. The basis for his objection was that if the R. L. Williams matter were tried first, the result might be the occasion for perjury, because after the conclusion of his trial R. L. Williams might take the stand in the trial of the other two defendants and exculpate them with impunity.
From information available to me it is apparent that the State's weakest case is as to R. L. Williams. With respect to the other two defendants, if the confessions pass Miranda muster, the State's position is stronger.
There is little doubt that in general a trial court has power to control its own calendar. The exception for "speedy trial" considerations is premised on protection of a defendant's rights, not prosecutorial interest in obtaining a conviction. Barker v. Wingo , 407 U.S. 514, 92 S. Ct. 2182,
33 L. Ed. 2d 101 (1972); see State v. Szima , 70 N.J. 196 (1976) cert. den. 429 U.S. 922, 97 S. Ct. 319, 50 L. Ed. 2d 289 (1976); R. 3:25-2, 3. For example, if a trial judge were to select for trial a two-day case on a Thursday, because the jury term ended on Friday, and were to postpone the trial of a five-day case to the next week, even though the five-day case were earlier on the list, no one would dream of questioning that decision. In this instance the decision that the R. L. Williams case be tried first comes into issue only because the prosecutor is under the impression that if it is tried last it will be easier for him to obtain convictions in the other two cases. If a trial judge's determination as to the order of trial is to be called into question, it can be only for an abuse of discretion. In this instance the decision as to order of trial was made for reasons similar to those which govern severance. Bruton, supra , held that a defendant implicated in an out-of-court statement made by a codefendant has a right to a separate trial, if the statement is to be used, because a single trial in which his codefendant could not be compelled to testify denies the right of confrontation.
Another common example is where joinder may deprive a defendant of the testimony of a codefendant who might be willing to testify for him at a separate trial, but is not willing to do so at a single trial. United States v. Shuford , 454 F.2d 772 (4 Cir. 1971). But see State v. Morales , 138 N.J. Super. 225, 230 (App. Div. 1975). For a thorough discussion of the joinder problems arising from the right of confrontation, see Westen, "The Compulsory Process Clause," 73 Mich. L. Rev. Part 1, at 71 (1974). In that article Professor Westen, dealing with the similarity between rules for severance and calendar sequence decisions, stated:
Thus, Echeles could not properly call Arrington as a witness during Echeles' case in chief. For if Arrington declined to take the stand, as was his right, Echeles' action in calling him and forcing him to decline to do so in front of the jury would have injected prejudicial error into the record as to Arrington.
The Government further contends that Echeles' position in support of his motion for severance necessarily involved indulgence in two speculative assumptions: first, that Arrington would be tried prior to Echeles, and secondly, that Arrington would not claim his Fifth Amendment privilege against self-incrimination if called as a witness in the trial of Echeles. As for the first such "assumption", we do not feel it would have been egregious had the trial judge, after granting the motion for separate trial, also directed the Government to proceed first with the case against Arrington. [at 898; emphasis supplied]
In Byrd v. Wainwright , 428 F.2d 1017, 1022 (1970), the court stated that "The sequence in which trials would be held is in the discretion of the court." See United States v. Sanders , 266 F. Supp. 615 (W.D. La. 1967), ...