On appeal from Superior Court of New Jersey, Law Division, Essex County.
Antell, J. H. Coleman, and Simpson. The majority opinion of the court was delivered by J. H. Coleman, J.A.D. Simpson, J.A.D., dissenting.
The crucial question raised by this appeal is whether a plea agreement between the State and two codefendants, which requires them not to testify on behalf of defendants-appellants herein, automatically entitles defendants to a new trial. Stated differently, the core question is whether defendants were denied their right to compulsory process. We hold they were not.
An Essex County Grand Jury indicted William James Brown, Richard Henry Fort, Barry Madison, Carmen Martinez, and Tasin Salsabil Muhammed for conspiracy to possess and distribute controlled dangerous substances, possession and possession with intent to distribute. Prior to trial, motions to suppress evidence on behalf of all defendants were denied. Defendants
Brown and Martinez then entered guilty pleas to some of the charges then pending. As part of the plea agreements, the State extracted from Brown and Martinez a promise "not to testify on behalf of codefendants." Defendants Fort and Muhammed were tried to a jury and found guilty of all charges in the indictment. Defendants Fort and Muhammed were sentenced to terms of imprisonment aggregating ten years with five years of parole ineligibility. Post-sentencing motions for a new trial were denied. Defendants Fort and Muhammed filed separate notices of appeal alleging as plain error denial of compulsory process. We consolidated the appeals and temporarily remanded the matters to the Law Division to conduct a hearing on the alleged denial of compulsory process. On the remand the trial judge concluded there was no such denial. We now affirm that determination.
First, we consider both defendants' contention that a reversal is required because the prosecutor deprived them of their right to compulsory process in violation of both the federal and New Jersey constitutions. Compulsory process may be broadly defined as a defendant's right to compel the attendance of witnesses at trial and to elicit testimony on behalf of the defense. The contention is based upon the "no testimony agreement" which the State extracted from Brown and Martinez promising not to testify on behalf of other codefendants.
We have absolutely no doubt that the "no testimony agreement" was not intended to serve the ends of justice. Rather, it was an inexcusable attempt by the prosecutor to frustrate the ends of justice by trying to deprive defendants of their right to compulsory process guaranteed by both the Sixth and Fourteenth Amendments to the federal Constitution and New Jersey Constitution (1947), Art. I, para. 10. State v. King, 164 N.J. Super. 330, 337 (App.Div.1978), certif. den. 81 N.J. 54 (1979). A prosecutor "must consistently refrain from any conduct that is lacking in the essentials of fair play." State v. D'Ippolito, 19 N.J. 540, 550 (1955). While we have no idea how
frequently prosecutors extract "no testimony agreements" from codefendants in the various counties, we strongly condemn the practice whenever and wherever it occurs. Our research, however, has disclosed no appellate case in this State condemning such agreements and none has been called to our attention. Compare State v. Hunt, 184 N.J. Super. 304 (Law Div.1981) which involved much more than a "no testimony agreement."
Although the no testimony provision in the plea agreements with Brown and Martinez, which were accepted and approved by the same trial judge who presided at the trial of defendants here involved, is obviously improper and should have been rejected by the court, we nonetheless find defendants' contention unpersuasive. We hold that the prosecutor's misconduct does not require a reversal unless it is demonstrated that the prosecutor's conduct somehow prejudiced a defendant. To hold otherwise would require us to adopt an inflexible per se rule that would lead to unnecessarily harsh results.
Based on our careful study of the record we find no evidence that the prosecutor's misconduct prejudiced either defendant. The record reveals that Brown and Martinez entered guilty pleas on January 19, 1982 and were scheduled to be sentenced on February 26, 1982. Therefore, when defendants were tried between January 20 and January 27, 1982, Brown and Martinez had not been sentenced. Any testimony given by Brown and Martinez during defendants' trial could clearly incriminate Brown and Martinez. Moreover, even if they had been sentenced, they were free to prosecute appeals claiming reversible error. See generally State v. Biegenwald, 96 N.J. 630, 638-639 (1984), and State v. Blue, 129 N.J. Super. 8, 12 (App.Div.), certif. den. 66 N.J. 328 (1974) which acknowledge that judgments of convictions are not final until appeals have been concluded.
Our further study of the appellate record discloses that at no time was Brown or Martinez properly subpoenaed to testify in
court or otherwise placed on the witness stand. Counsel for Fort and Muhammed argue that any attempt to produce Brown or Martinez would have been useless given the fact that their attorneys had assured them that their clients would claim the Fifth Amendment. On the remand, a subpoena was produced which was addressed to Brown and Martinez but never served upon those prospective witnesses.
As the trial judge correctly concluded on the remand hearing, it was a matter of trial strategy, rather than the plea agreement, which led to the nonproduction of Brown and Martinez in court, either voluntarily or under a subpoena. This conclusion fairly leaps from the pages of the record. Martinez and Brown would have had a valid Fifth Amendment privilege since they had not been sentenced on their pleas and the time for an appeal had not commenced to run. We have no doubt that the trial strategy was substantially influenced by the knowledge that Brown and Martinez could and would raise their valid Fifth Amendment privileges if placed on the witness stand. Although the dissenting notes in closing that the trial might have been adjourned until such time when Brown and Martinez could no longer claim any risk of incrimination, it nowhere appears that either Fort or Muhammed requested this relief. It was also part of the trial strategy not to use a subpoena to force Brown or Martinez onto the witness stand out of the presence of the jury to see if they would assert the privilege or the "no testimony agreement" and then require the court to make a ruling.
Had Brown or Martinez been produced in court and counsel learned that either would not testify, an Evid.R. 8 hearing could have been requested. After the witnesses were sworn, they would have been required to explain their refusal to testify. Had they refused to testify based on fear of self-incrimination, that would have been a sustainable privilege. On the other hand, had they refused to testify out of fear of breaking the plea contract, the judge would have been required
to determine whether the "no testimony agreement" was enforceable. Clearly, the only correct ruling would have been to declare the "no testimony" portion of the agreement void as violative of our public policy as well as the federal and state constitutions. Had he failed to require them to testify notwithstanding the agreement, a reviewing court would be in a position to conclude that the agreement had significantly interfered with defendants' ability to call witnesses. Absent such a showing, we are constrained to follow our observations stated in State v. Harper, 128 N.J. Super. 270, 277 (App.Div.1974); certif. den. 65 N.J. 574 (1974):
[t]rial errors which were induced, encouraged or acquiesced in or consented to by defense counsel ordinarily are not a basis for reversal on appeal. State v. Pontery, 19 N.J. 457 (1955); State v. Roscus, 16 N.J. 415 (1954); State v. Auld, 2 N.J. 426 (1949), aff'd on petition for habeas corpus 187 F.2d 615 (3 Cir.1951). "The defendant cannot beseech and request the trial court to take a course of action, and upon adoption by the court, take his chance on the outcome of the trial, and if unfavorable, then condemn the very procedure he sought and urged, claiming it to be error and prejudicial." State v. Pontery, supra 19 N.J. at 471; * * * [additional citations omitted.] [128 N.J. Super. at 277]
The cases relied on by defendants are distinguishable from the facts presented here. The common thread running through all the cases cited to us is the fact that the prospective witness was either placed on the witness stand or was in court ready to take the stand. The court forced, intimidated or coerced the prospective witness from the stand with its warnings, admonitions, or enforcement of a statute which precluded the witness from testifying. See Webb v. Texas, 409 U.S. 95, 93 S. Ct. 351, 34 L. Ed. 2d 330 (1972); United States v. Thomas, 488 F.2d 334 (1973); Washington v. Texas, 388 U.S. 14, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (1967). ...