On appeal from the Superior Court of New Jersey, Law Division, Mercer County.
Pressler and King. The opinion of the court was delivered by King, J.A.D.
[164 NJSuper Page 28] Defendant McNeil and his codefendant Ethridge were indicted for the armed robbery of the manager of the Olden Cinema in Trenton on September 1, 1974. The case was tried to a jury in the spring of 1976 and both
defendants were found guilty and received State Prison sentences. Defendant McNeil appeals, claiming error in the judge's charge.
At the close of the State's case the trial judge asked defense counsel if they had consulted with their clients as to whether they chose to testify in their own defense. The judge explained to counsel that if a defendant chose not to testify he would ask each defendant if he wanted the standard instruction on the constitutional right of a defendant in a criminal case to remain silent and not suffer any adverse inference from the election not to testify.
Defendant McNeil told the judge that he elected not to testify. McNeil and his defense counsel then told the judge they did not want any instruction on McNeil's election not to testify. Codefendant Ethridge also chose not to testify but personally told the judge that he wanted the charge. When confronted with this dilemma the judge said, "All right. Then I'll charge that on your [Ethridge's] behalf, and I will not mention it on Mr. McNeil's behalf."
The judge then delivered the standard jury instruction appropriate to the crimes charged in the indictment, including the criminal burden of proof and the absence of any burden on a defendant to call witnesses, prove his innocence, or prove someone else committed the crime. The judge gave the following instruction pursuant to defendant Ethridge's request:
Members of the jury, it is the constitutional right of a defendant to remain silent. Defendant, Willie D. Ethridge, chose not to be a witness and, therefore, elected to exercise that right. I charge you that you are not to consider, for any purpose, or in any manner in arriving at your verdicts, the fact that Defendant, Ethridge, did not testify. Nor should that fact enter into your deliberations, or discussions, in any manner, or at anytime. A defendant is entitled to have a jury consider all of the evidence, and he is entitled to the presumption of innocence, even if he does not testify as a witness. Therefore, you may not draw any inference of guilt from the fact that Defendant, Willie Ethridge, did not testify in this matter.
At the proper time McNeil's counsel made the following objection to the charge.
I take exception, of course, to the portion of your charge that dealt with the comment on the failure of the defendant to take the stand. Of course, I understand that you only made it for Ethridge, but it was said. Out of the presence of the jury, I had told you that I wanted no comment. And you made no comment, but the comment was made. You couldn't help it, I imagine, but I still would take exception to it.
The trial judge refused to modify his jury instruction.
Defendant McNeil now contends that the instruction as given infringed on his constitutional right not to testify and not to be penalized by his silence. Malloy v. Hogan , 378 U.S. 1, 84 S. Ct. 1489, 12 L. Ed. 2d 653 (1964); Griffin v. California , 380 U.S. 609, 85 S. Ct. 1229, 14 L. Ed. 2d 106 (1965); State v. Lanzo , 44 N.J. 560 (1965). Of course, no direct judicial comment was made on McNeil's silence; but he contends the only ...