The opinion of the court was delivered by: BIUNNO
Edward 25X King was convicted in Superior Court of New Jersey, Essex County, on four counts of a six-count indictment for armed robbery, and sentenced to an aggregate of 8 to 12 years in State Prison. After affirmance of his conviction by the Appellate Division and the denial of certification by the Supreme Court of New Jersey, King filed a petition under 28 U.S.C. § 2254 in this court. Counsel was appointed, and because of decisions lately handed down at the time from higher courts, defendant was directed to file a special answer providing a chronological history. This method is an experimental one designed to adduce facts more efficiently when one of the parties is a pro se indigent in custody, and the other is his custodian. See, e.g., U.S. ex rel. Ricketts v. Lightcap, 567 F.2d 1226 (CA-3, 1977); Hardwick v. Ault, 517 F.2d 295 (CA-5, 1975).
King was later convicted, also in the Superior Court of New Jersey, on a later indictment charging possession of a revolver without a permit. As in the first case, his conviction was affirmed on appeal and certification was denied.
After the special answer had been filed in the pending § 2254 case, King submitted a second petition to challenge the second conviction. Since the rules on § 2254 relief enacted by Congress to take effect February 1, 1977 clearly intend that there be a single petition to challenge multiple judgments of the same state court, an order was entered directing that the second petition be treated as an amendment to the first petition.
In due course, answer to the second petition was filed. Thereafter, copies of briefs filed in the direct appeals, as well as opinions of the Appellate Division, papers on the applications for certification and the like, were received. Briefs on the petitions have also been received.
After careful review of the petitions and papers in both cases, the court finds only one issue of substance, that issue being one involved in the armed robbery conviction. That issue will be dealt with first. The others are without merit, and will be discussed afterwards.
CALLING OF THE CO-DEFENDANT THOMPSON AND RELATED ASPECTS.
The alleged robbery evidently took place at the Tremont Hotel in Newark, the victims being the desk clerk (Dupont) and two persons in the lobby (Clark and Taylor).
King's trial took place from February 25 to March 1, 1974 and ended in mistrial when the jury could not agree. Trial before another jury took place April 23-25, 1974. At this trial, the court dismissed the two counts involving Clark. The jury returned verdicts of guilty on the remaining four counts (Dupont and Taylor). The sentences aggregated 8 to 12 years in State Prison.
Before the first trial, co-defendant Thompson pleaded guilty to the robbery of Dupont and was sentenced. At King's first trial, Thompson refused to testify, and was found to be in contempt of court.
At King's second trial, Thompson was again called as a witness for the State. This time, he was first examined on voir dire outside the jury's presence and informed the court that he would refuse to testify. In the jury's presence, and over objection, he was called to the stand by the State and sworn. In answer to questions he admitted that he had pleaded guilty to robbery of Dupont on May 29, 1973 (as charged in the indictment) but refused to answer questions about who else was involved in that robbery. He was then excused.
A motion for mistrial was denied, and the court gave the jury a cautionary mid-term instruction to the effect that Thompson's guilty plea was not to be considered as indicating that King was in any way guilty of the crime. Reference was made to the presumption of innocence, on which the court said it would charge more completely later. Finally, the court said that the jury was not to hold against King the fact that Thompson was named as a co-defendant in the indictment, nor was it to hold against King anything said about the conviction of Thompson while in the courtroom.
During summation, the prosecutor referred to Thompson's guilty plea and to identification testimony by the victim Taylor who had selected a photograph of Thompson, as indicating Taylor's opportunity to observe and ability to identify. Again, a cautionary instruction was given, to the effect that any involvement of others was "absolutely immaterial" to the issue of King's guilt.
Petitioner's brief on this score involves several aspects: (1) deprivation of a fair trial by allowing Thompson to be called, knowing he would not testify; (2) deprivation of a fair trial by the reference to Thompson's plea in summation, and (3) denial of the right of confrontation by calling a witness who it was known would refuse to testify.
The State's position is that while an accused on trial is entitled to have the issue of guilt decided on the evidence adduced against him at his own trial, and not by what occurred on prosecution of others, evidence of guilty pleas and convictions of co-defendants is not reversible error if there is no "undue emphasis" and if cautionary instructions are given, citing U.S. v. Newman, 490 F.2d 139, at 143 (CA-3, 1974), a case where reference to a co-defendant's conviction was mentioned by a witness during cross-examination although cautioned not to refer to it. (In Newman, where the reference had "crept in", the Court of Appeals found the cautionary instruction inadequate).
The State also relies on the proposition, taken from State v. Jamison, 64 N.J. 363, at 378-379, 316 A.2d 439 (1974) that since Thompson never claimed his Fifth Amendment privilege against self-incrimination but merely stated that he would not testify, the prosecutor had reason to hope that he would answer questions on the stand.
This argument is not persuasive. Jamison was a case where, during a recess in the jury selection for the trial of A for a stabbing, an accomplice, B, informed the prosecutor (who then informed the court) that it was he, not A, who had stabbed the victim. On voir dire before the judge, he admitted the stabbing and exculpated A, thus contradicting an earlier statement to the police in which he inculpated A. Because of the seriousness of the admission, the judge appointed counsel for the witness, and counsel informed the court that the new testimony was withdrawn and that B would claim his Fifth Amendment privilege. The Supreme Court ruled that the judge's intervention was not warranted and probably deprived A of B's exculpatory testimony, albeit its credibility was open to challenge because of his first inculpatory statement.
In footnote 1, at pp. 373-374 of 64 N.J. 316 A.2d 439, reference is made to the practice, when the State calls an accomplice or co-participant, of conducting a voir dire examination first to avoid having the jury draw unfavorable inferences against defendant, and the rule under which the State can be precluded from calling the witness before the jury when he declines to testify on the voir dire. The policy considerations for that practice and rule are noted as not applicable in the reverse situation, when the defense wishes to call the witness, though no final articulation is made.
In any event, Jamison is not applicable because it presented the reverse situation, one where the defense wished to call the witness, not where the prosecution did.
Argument based on Thompson's failure formally to claim the Fifth Amendment is misplaced. First of all, these are not the McCarthy days during which a witness who did not pronounce the exact abracadabra was in jeopardy of being held to have waived the privilege. In the second place, Thompson could not raise a valid Fifth Amendment claim about the robbery of Dupont. He had pleaded guilty to that very charge, on the same indictment, and had been sentenced. Whatever Thompson was asked about the Dupont robbery, his answers could not amount to self-incrimination on that offense. His only risks were if he lied, in which case he could be charged with perjury or false swearing, for which the law gives no license, or if he refused to answer after being ordered to do so, in which case he could be punished for contempt or subjected to coercion as a recalcitrant witness. Cf. 18 U.S.C. § 6002, and 28 U.S.C. § 826.
To put this case in its proper context, a number of aspects must be considered,
One : under New Jersey law, the fact that a witness has been convicted of a crime is one of the matters that may be shown for the purpose of affecting his credibility. See N.J.S. 2A:81-12 (but note that the final phrase, "but no conviction of an offender ... upon which the conviction was based", is superceded by reason of the "Official Note" to N.J.Ev.Rule 60(20), dealing with a hearsay exception in civil proceedings). With some variations by limitation, Fed.Ev.Rule 609 is essentially the same.
Two : it has long been common practice in both State and Federal courts, to allow the party who has called a witness to elicit on direct examination of his own witness any prior conviction of the witness. This is on the theory that the fact will be elicited anyway on cross-examination, and to allow it to be elicited on direct helps to neutralize any "sting" effect that might wrongly give the jury the impression that the party who called him was trying to foist an unreliable witness on them.
For federal cases reflecting the practice before the enactment of Fed.Ev.Rules 607 and 609, see Application of Holley, 205 F. Supp. 933 (D-N.J., 1962); U.S. v. Freeman, 302 F.2d 347(CA-2, 1962); U.S. v. Chamley, 376 F.2d 57 (CA-7, 1967).
See, also, for a specific note on the practice of allowing the party calling a witness with a criminal record to elicit the record on direct examination, Wigmore, "Evidence", § 900, especially footnote 1 at p. 667.
Despite a dearth of treatment of the subject in primary and secondary authorities, the practice was already long established and widely recognized by the profession, bench and bar, 40 or more years ago. One of the classic examples (unfortunately not a reported case) is State v. Workman (Essex County, N.J.), in which Charles (The Bug) Workman was tried for the murder of Arthur Flegenheimer (Dutch Schultz) at the Palace Chop House in Newark, on October 23, 1935. See U.S. v. Flegenheimer, 14 F. Supp. 584, at 592 (D-N.J.1935); ordered stricken from the records, 110 F.2d 379, at 381 (CA-3, 1936). Some five years later one Abe (Kid Twist) Reles provided information inculpating Workman as "the one who shot the Dutchman". At Workman's trial, Reles was the star witness for the prosecution. It was at the conclusion of his relevant, inculpatory testimony that ...