On appeal from Superior Court of New Jersey, Law Division, Morris County.
Fritz, Milmed and Joelson. Joelson, J.A.D., concurring.
Indicted in 13 counts, defendants, who are husband and wife, were convicted of larceny of property over the value of $500 and of conspiracy to commit the substantive crime. Because we are satisfied from the whole record that the guilt of both defendants has been overwhelmingly demonstrated in a trial fair to both the State and defendants, we affirm.
Defendants assert a number of grounds, each of which except one appears only in the brief on a pretrial motion for leave to appeal the refusal of the trial judge to dismiss all the counts of the indictment on defendants' motion. Defendants were given leave to rely on that brief as well as on their appeal brief.
The sole point asserted in the appeal brief is the only one which caused us any pause. There defendants complain of the failure of the trial judge to sever on one or more of the following grounds: (1) error in the Bruton-Young (Bruton v. United States , 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968); State v. Young , 46 N.J. 152 (1965)) determination; (2) rejection by the trial judge of Evid.R. 2, 23 and 28*fn1 in the circumstances
of this case; (3) "the nature of the State's charges and proofs mandated severance in light of defendants' marital status under the test of fundamental fairness." Even here, were it not for the obvious guilt of defendants, only the Evidence Rule point would attract our attention.
The marital privilege embraced in Evid.R. 23(2) immediately inspires intellectual interest, in the circumstances of this case. This is not because of the recent marked and consistent attrition of the spousal unity concept (Romeo v. Romeo , 84 N.J. 289 (1980); Immer v. Risko , 56 N.J. 482 (1970)). It is not because the offense is a criminal offense against the public and therefore upon the society of which they are members (see State v. Briley , 53 N.J. 498 (1969)). Nor is it because the victims here, considering their social history and mental condition, might have been considered children to whom defendants stood in the place of a parent (Evid.R. 23(2)(b)).*fn2 And it is not because of the likelihood that the testifying of the Infinitos before the grand jury, on waiver of immunity, with respect to conversation had with each other constituted a waiver of the privilege, or in terms of Evid.R. 23(2)(a), a "consent." Rather it is the reflection that if defendants' argument were to succeed, a procedural rule intended solely to promote marital harmony becomes, if not a suit of armor against the weapons of truth ascertainment in a criminal prosecution, at least a bullet-proof vest.
But as observed by counsel for defendants at the Bruton-Young hearing, these are complicated and highly sophisticated questions. We see no reason to undertake them in a matter where the guilt is so clear that we may declare our belief that any error was harmless beyond a reasonable doubt, thus satisfying
the rule of Chapman v. California , 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967). State v. Macon , 57 N.J. 325 (1971).
Defendants assert that "a husband and wife cannot criminally conspire under New Jersey law." Citing State v. Carbone , 10 N.J. 329, 336 (1952), and two trial court cases which arrived at opposite conclusions (State v. Pittman , 124 N.J. Super. 334 (Law Div.1973), and State v. Struck , 44 N.J. Super. 274 (Cty.Ct.1957)), as the only New Jersey authority, they insist that "the common law basis of N.J.S.A. 2A:98-1" should not "be lightly discarded so as to permit the State to prosecute defendants for conspiracy." We recognize our obligation not to depart from pronouncements of our court of last resort. In re Education Ass'n of Passaic, Inc. , 117 N.J. Super. 255, 261 (App.Div.1971), certif. den. 60 N.J. 198 (1972). Considering the immense sociolegal changes which have taken place in the last 30 years (e.g., Romeo v. Romeo, Immer v. Risko , both supra) as well as the precise issue determined in State v. Carbone, supra , we do not consider the question as to whether the common law in New Jersey today prohibits prosecution of spouses for conspiracy to be a matter having been "squarely decided" (In re Education Ass'n of ...