50 A.3d 686
N.J. Super. Ct. App. Div.2012Background
- Defendant was convicted of third-degree burglary in Millville after a two-day trial and sentenced to five years with 36 months’ parole ineligibility.
- During trial, defense initially waived but later sought to call a co-defendant jailed witness who asserted a Fifth Amendment right.
- The defense decision to testify was made after the first day; the judge denied a reopening to hear the defendant testify.
- The jail witness testified outside the jury, but the defendant chose not to testify when asked on the record the following day.
- On the morning of the second day, the defendant sought to reopen to testify; the judge refused, citing expediency and rested posture.
- The court reversed, holding the trial judge abused discretion and denied the defendant’s right to testify, remanding for a new trial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court erred in denying reopening to hear defendant testify | Defendant | Defendant | Yes; denial reversed for right to testify |
| Whether the right to testify is protected under state due process when reopening is sought late | State | Defendant | Right protected; reopening warranted unless prejudice shown |
| Whether expediency can outweigh the defendant’s constitutional right to testify | State | Defendant | Expediency outweighed; reversed |
Key Cases Cited
- Rock v. Arkansas, 483 U.S. 44 (U.S. 1987) (right to testify grounded in federal constitutional rights)
- State v. Savage, 120 N.J. 594 (N.J. 1990) (state constitutional basis for the right to testify)
- State v. Wolf, 44 N.J. 176 (N.J. 1965) (reopening after resting; discretion guided by ends of justice)
- State v. Menke, 25 N.J. 66 (N.J. 1957) (prejudice and jury confusion weighed against reopening, but liberal review in similar contexts)
- State v. Gray, 101 N.J. Super. 490 (N.J. Super. Ct. App. Div. 1968) (reopening discretion; contrasting with Wolf analysis)
- Pepe v. Urban, 11 N.J. Super. 385 (N.J. Super. Ct. App. Div. 1951) (caution against excessive expediency in court administration)
- State v. Bankston, 63 N.J. 263 (N.J. 1973) (limits on prejudicial questioning and prosecutorial conduct)
- Henderson v. Bannan, 256 F.2d 363 (6th Cir. 1958) (administration of criminal law requires more than swift justice)