On appeal from Superior Court, Law Division, Hudson County.
Matthews, Crane and Antell. Antell, J.A.D. (dissenting).
[162 NJSuper Page 49] After a trial by jury defendant was found guilty of the first degree murder of Charles Arthur Parsons while armed with a revolver, possession of a revolver without a permit to carry it, in violation of N.J.S.A. 2A:151-41, and possession of a revolver without a permit to acquire it, contrary to N.J.S.A. 2A:151-32. Defendant was sentenced to life imprisonment in the New Jersey State Prison for the murder; a concurrent term of three to five years in the New Jersey State Prison for being armed; two to three years consecutive to the life sentence for possession of a revolver without a permit to carry and a one to two-year concurrent term for possession of a revolver without a permit to acquire.
On this appeal defendant's primary contention is that the trial judge grossly abused his discretion and denied him due process in calling four witnesses as the court's witnesses, thus permitting the prosecutor to circumvent the strictures of Evid. R. 20 and Evid. R. 63 (1) (a).
The unusual circumstances which prompted the trial judge to call four witnesses as court's witnesses were briefly as follows. On the evening of August 24, 1973 the victim, Charles Arthur Parsons was found lying in the hallway of an apartment building. He had been shot and was pronounced dead on arrival at the hospital. The police traced a trial of blood back to the apartment of Cecil Hill, the girlfriend of the victim and the former girlfriend of defendant. At the trial, after the jury was selected and sworn but before the openings were made, the prosecutor requested the judge to call the four witnesses as court witnesses. He represented to the judge that Cecil Hill had given statements which conflicted as to her knowledge of the incident and the presence of defendant on the scene. Margaret Ross, who lived in the same building as Cecil Hill and is defendant's sister, gave a statement that she never saw defendant at the scene. She refused to keep an appointment with a prosecutor's investigator. Felicia Ross, Margaret's daughter, picked out a picture of defendant and said that he was the man who came into the apartment after Cecil Hill with a gun. Shortly before trial Felicia was interviewed in the prosecutor's office in the presence of her mother and the child grinned and said she had no recollection of what happened. Welton Hill, the son of Cecil Hill, at first told the police that Pee Wee, the defendant, shot the victim with a firecracker. Before trial Cecil Hill refused to allow the prosecutor to interview Welton and refused to be interviewed herself.
Pursuant to Evid. R. 8, the trial judge, out of the presence of the jury, heard the testimony of the four witnesses and five police officers as to the statements that had been given. Following the hearing the judge found that the witnesses
were all in some way or other closely related to defendant by blood or association, that they were all physically present at the time and in the area where the incident occurred and were all basically hostile to the State's position. In the interest of producing all of the vital facts before the jury, he determined that the witnesses would be called as court witnesses.
After the openings were concluded the judge announced to the jury that Cecil Hill was called as a court's witness, that neither side vouched for her credibility and that what weight was to be given to her testimony was up to it. The Judge participated in the interrogation of the witness only minimally. The essential examination was by the prosecutor and defense counsel. During the course of the prosecutor's examination of Cecil Hill two statements she had made to police were admitted as substantive evidence on the authority of State v. Provet , 133 N.J. Super. 432 (App. Div. 1975), certif. den. 68 N.J. 174 (1975), and Evid. R. 63(1) (a). She was later called as a witness for the defense. Each of the other court witnesses was examined in a similar manner and questioned about his or her prior statements. Two of the witnesses, Welton Hill and Margaret Ross, were also called as defense witnesses.
Evid. R. 63(1) (a) and Evid. R. 20 provide that a prior inconsistent statement may be admitted when offered by the party calling the witness, only for the purpose of neutralization and only if the judge finds that the party offering the statement was surprised. Such a restrictive approval to the use of prior inconsistent statements is not required as a matter of federal constitutional law. California v. Green , 399 U.S. 149, 158, 90 S. Ct. 1930, 26 L. Ed. 2d 489 (1970). The rule has been criticized and is the subject of a proposed change by the Supreme Court's Committee on Criminal Practice. 101 N.J.L.J. 437 (May 4, 1978). It is clear that when a party other than the party calling the witness offers a prior inconsistent statement in evidence, it is admissible as substantive evidence. State v. Provet, supra.
Here the action of the trial judge in calling the witnesses as court witnesses enabled the State to introduce the prior inconsistent statements as substantive evidence. Such an action is not in itself improper, State v. Singleton , 158 N.J. Super. 517 (App. Div. 1978); State v. Andreano , 117 N.J. Super. 498, 502 (App. Div. 1971); McCormick, Evidence (2 ed. 1972), § 8 at 12-14; Annotation, 67 A.L.R. 2d 540; 81 Am. Jur. 2d, Witnesses , § 3. So long as the judge does not assume the role of an advocate and maintains an atmosphere of impartiality such an exercise of sound discretion for the purpose of preventing a miscarriage of justice under the law will not be disturbed. Ridgewood v. Sreel Investment Corp. , 28 N.J. 121, 132 (1958); Band's Refuse Removal, Inc. v. Fair Lawn , 62 N.J. Super. 522, 547-550 (App. Div. 1960), certif. den. 33 N.J. 387 (1960), mod. 64 N.J. Super. 1 (App. Div. 1960). Our review of the record indicates that the trial judge played a minimal role in the interrogation of the witnesses, was scrupulously impartial and made it clear to the jurors that the assessment of the credibility of the testimony was their function. Thus we find no mistaken exercise of discretion. The judge did not interfere with the role of the jury in assessing the credibility of the witnesses. Cf. United States v. Karnes , 531 F.2d 214 (4 Cir. 1976).
Defendant also contends that the trial judge committed plain error in allowing the State to present evidence of the defendant's possession of a .38-caliber pistol subsequent to the murder. No objection to the introduction of the evidence was raised at the trial. Reference to the later possession was made to counter defendant's testimony that he did not own a gun and had never had one in his hand since he left the South. On cross-examination the prosecutor questioned defendant about the subsequent possession of the gun and on rebuttal the State offered the testimony of a detective to whom defendant admitted possession of the gun. The judge amply cautioned the jury to consider the testimony solely for the purpose of testing the defendant's
credibility. We find no error and, necessarily, no plain error. The testimony was properly admitted to contradict a specific factual assertion made during defendant's case. State v. ...