On certification to the Superior Court, Appellate Division.
For reversal and remandment -- Chief Justice Wilentz and Justices Clifford, Schreiber, Handler, Pollock, O'Hern and Garibaldi. For affirmance -- None. The opinion of the Court was delivered by Garibaldi, J.
[93 NJ Page 579] This appeal involves defendant's right to assistance of counsel, pursuant to the Sixth Amendment to the United States Constitution and Article I, Paragraph 10 of the New Jersey Constitution. Specifically, the issue presented is whether a court order prohibiting defendant from discussing his testimony with his
attorney during an overnight recess deprives defendant of his constitutionally guaranteed right to assistance of counsel. We hold that it does.
Defendant, Lawrence J. Fusco, II, was charged in two indictments with murder while armed, in violation of the then-applicable statutes, N.J.S.A. 2A:113-2 and N.J.S.A. 2A:151-5. The indictments arose out of incidents occurring on July 15, 1979 that resulted in the death of Vincent Marolda. Undisputed testimony at trial revealed that for over a year prior to the murder, defendant dated Michelle Marolda, the victim's wife, who was then separated from her husband. Shortly before the murder, Michelle informed defendant that she wished to end their relationship. The State's witnesses testified that defendant, fearing Michelle would return to her husband, desperately enlisted the aid of two friends, Robert Thompson and Rhoda Leeb, and thereafter ambushed and murdered the victim.
While in jail awaiting trial for the Marolda murder, defendant was indicted for conspiring with another inmate to have Robert Thompson, the key witness against him, murdered. Defendant was then indicted for conspiracy to commit Thompson's murder in violation of N.J.S.A. 2C:5-2. The indictments subsequently were consolidated for trial.
Because the State's case rested largely on circumstantial evidence, defendant's attorney requested at the pretrial conference that witnesses be sequestered during trial. The following stipulation appeared as Item 18 in the pretrial memorandum:
18. Reciprocal sequestration and a witness on the stand whose direct testimony shall have been completed shall not be spoken to by the attorney who calls him insofar as his testimony is concerned. Sequestration is interpreted that deft's witnesses may be present during the State's case and the State's witnesses during the deft's case.
At the outset of trial, the trial court reminded the attorneys that Item 18 of the pretrial memorandum required witnesses to be sequestered. Several times during the two-week trial the
court invoked the provisions of Item 18.*fn1 Similarly, as the defense was about to present its case, the court again reminded counsel of the sequestration order.
On March 26, 1980, defendant took the stand,*fn2 and in the midst of his cross-examination, the court indicated that it would recess for the day. After the jury left the courtroom, defendant, who remained on the stand, addressed the trial judge regarding the prosecutor's questions:
THE WITNESS [Defendant]: Your Honor, could I ask you a question?
THE COURT: Yes, Mr. Fusco.
THE WITNESS: Your Honor, Mr. Menz asked me the question before and I never got to completely finish. He went completely away from it on this here.
THE COURT: So you say this here, you mean what?
THE WITNESS: The Statements like this me here saying that the Police did it on August 23 and then yet it's typed August 22. He went away from the question completely on me.
THE COURT: You may review that.
THE WITNESS: It just baffles me, sir. I'm trying to understand a little bit too because it's my life on the line.
THE COURT: You may review that with your attorney.
MR. MENZ: Excuse me, your Honor. He may not as I understand the Court ruling most respectfully.
THE COURT: Yes, that is correct.
MR. GROSS: I'm not allowed to talk to my client?
THE COURT: You'll recall I believe it was your request in fact, Mr. Gross that no witness would be spoken to until ...