On appeal from the Superior Court, Law Division, Mercer County.
Havey and Skillman. The opinion of the court was delivered by Skillman, J.A.D.
[212 NJSuper Page 285] This is an appeal from an order holding defense counsel in a capital murder case in contempt for failing to provide the court and prosecutor with the names of prospective defense witnesses within the time required by the pretrial order. We conclude
that the trial judge should not have summarily adjudicated the alleged contempt pursuant to R. 1:10-1 but rather should have referred the matter to another judge for a hearing pursuant to R. 1:10-2 and 4. Therefore, we reverse and remand.
The pretrial conference in the murder case was held on June 7, 1985. Paragraph 4 of the pretrial order provided:
The state has supplied a witness list. Defendants will supply a list of witnesses on or before July 12, 1985. All parties to abide by the Rules of Discovery in adding names to their witness lists. (Guilt phase only)
Defense counsel, Barbara R. Lependorf, the respondent in contempt proceedings, failed to submit a list of witnesses by July 12, 1985 or by the beginning of the trial.
On October 17, 1985, at the beginning of the third day of jury selection, Lependorf advised the trial judge she had "a potential defense witness list" consisting of five names. The trial judge asked her why these names had not been produced earlier. Lependorf responded that two of the witnesses had been interviewed by her investigator only the day before and that the others still had not been interviewed. Lependorf further stated that she had been aware of one of the names on the witness list earlier but that there had been only the "vaguest of possibilities" the person would testify. She said that "until my investigator has seen somebody, it's not even a potential witness, as far as I'm concerned. . . ."
The trial judge stated that he did not consider this to be an excuse for failing to disclose the witnesses' names earlier and that he was considering holding her in contempt. The following colloquy then occurred:
THE COURT: There's never any need to only place witnesses who are actually going to be called. As you well know possible witnesses is what the Court asks for, and what you're fully aware.
MS. LEPENDORF: Judge, if I told you the number of names that I had, it would have been, I mean, almost ridiculous. And we've tracked them down, one by one, we have one investigator assigned to us who has every murder case in our office, including the death penalty cases. He has been working day and night. He hadn't reached, I mean there were a lot of people that were not listed as witnesses, and won't be listed as witnesses, because there are people who had no information. But we had a list of names that was huge, and by the
time he reached each one, if it was a potential witness, and as I said, at this point, he hasn't even talked to Albert Crawford, or Mr. Mindy.
THE COURT: Well, he hadn't talked to them a week ago either. You could have given us the names then, could you not have?
MS. LEPENDORF: Judge, as I said, I could have given you a list of maybe 50 or 60 names, but they would have been worthless.
THE COURT: What would have been wrong with that, that's actually what I had asked you for, all possible witnesses. And you continued to maintain you had no witnesses on many occasions. I can recall very distinctly before the time, or at the time we were going over the questionnaire, Mr. Norris getting up and specifically asking you, and ...