On certification to the Superior Court, Appellate Division.
Clifford, Wilentz, Handler, Pollock, O'Hern, Garibaldi, Stein
The opinion of the court was delivered by
In an unreported opinion the Appellate Division affirmed the convictions of defendant, Douglas McGraw, for second-degree aggravated assault and two possessory offenses. The charges arose out of a melee in the course of which the victim was stabbed. The single issue on which we granted certification, 126 N.J. 337 (1991), is posed in defendant's petition as follows: should the court have told the jury that defendant's brother Larry McGraw had been called to testify but had invoked his Fifth Amendment right not to do so, or, failing that, should the court at least have instructed the jury that it should draw no negative inference against defendant as a result of his brother's not having testified?
We conclude that the trial court properly insulated the jury from the witness's invocation of the right not to testify; and that although the court should have instructed the jurors that they should draw no inference from either party's failure to have produced Larry McGraw, that deficiency in the charge does not require reversal of defendant's convictions. We therefore affirm.
The brouhaha that produced the criminal charges before us has a colorful background. We limit our recitation, however, to only so much of the detail as is necessary to set the legal issue in context.
On an August evening in 1986 defendant, Douglas McGraw, and his brothers, Michael and Larry, were playing cards and drinking beer at Michael McGraw's residence in South Dennis. The victim, David Wayne Robson, arrived on the scene with Brian Fischer, and shortly thereafter an argument ensued between defendant and Robson. That disagreement escalated into a fist fight on the front lawn. The tranquility of the occasion was further disrupted by an altercation between defendant's brother Larry McGraw and Fischer. When all the participants had tired of their pugilistic exertions (the number of fights as well as their time and location remains unclear) and the hostilities had subsided, the combatants took advantage of the lull to assess the carnage. Robson was found to have suffered cuts about the face, stomach, and side, and defendant discovered a severe laceration on his hand. While defendant retired from the battleground to his brother's house to tend his wound, Fischer took Robson, whose bowels were exposed, to the hospital. On the way, the victim told Fischer that defendant had stabbed him.
At trial, the prosecution claimed that although none of the witnesses could testify to having seen a knife during the fight, defendant had stabbed Robson with Robson's five-inch buck knife, which the victim admitted to having carried, folded but unsheathed, in his back pocket. (Robson, a commercial fisherman, explained that he used the knife in his work.) Defendant argued that because Robson had emerged unhurt from their fisticuffs and because defendant had engaged in none of the other brawls, defendant could not have stabbed the victim. He claimed that he had neither possessed nor used a knife that evening, but that he had seen Larry with a knife immediately after the fight. He recalled that during the fight he had felt a burning sensation in his hand but had assumed that he had fractured a bone, and that only after some measure of peace had been restored did he realize that he been cut. He testified that his brother Larry had started crying and hugging defendant when, after the tussle, he realized that defendant had been cut. According to defendant, Larry later told him that he would not "let [defendant] take the rap for nothing." In an effort to rebut the unfavorable results of a polygraph examination, to which he had stipulated before trial, defendant asserted that he had been nervous about the possibility that he would incriminate Larry. Other witnesses to the evening's events corroborated defendant's version of the episode.
After defendant had completed his testimony, the court, having learned that Larry was to be called as the next witness, conducted a hearing pursuant to Evidence Rule 8. The court found a sufficient basis for Larry's invocation of the Fifth Amendment privilege against self-incrimination. See State v. Craig, 107 N.J. Super. 196, 199 (App. Div.) (citing State v. De Cola, 33 N.J. 335, 350 (1960)), certif. denied, 55 N.J. 169 (1969). Although defense counsel never specifically requested that the court inform the jury that Larry had invoked the Fifth Amendment privilege, counsel implied, in chambers, that he expected the court to allow Larry to testify to non-incriminating matters. The expectation was short lived.
THE COURT: No. Let me just tell you something. He either testifies or he doesn't. He can't elect to testify to parts and then assert the privilege otherwise. Do you follow me ?
[DEFENSE COUNSEL]: I understand, Judge.
THE COURT: He either asserts the privilege or he doesn't assert it. Now, he has asserted the privilege here in the Court's judgment and, therefore, he can't testify to anything. He can't testify piecemeal and throw things out there that he wants to say to help his brother and then hide behind the privilege to protect himself against something that could result in charges against him.
Defendant did not request the court to instruct the jury that it could not draw any inference from Larry's non-participation in the trial. See State v. Clawans, 38 N.J. 162, 171 (1962). Nor did defendant request that the court confer use immunity on testimony that Larry might give. See Virgin Islands v. Smith, 615 F.2d 964, 969-74 (3d Cir. 1980).
The only comment made in the jury's presence regarding the possibility that Larry would testify came from defendant on cross-examination:
Q: And you said, on your direct testimony, that you didn't discuss this with Larry about you telling him that you were going to testify that you saw him with the knife. ...