State v. DwyerState v. Dwyer
Defendant appeals from his convictions on two counts of simple assault,
Defendant filed complaints charging Joseph and Paul Giuliano with criminal trespass,
Defendant testified that while at home on the afternoon of February 8, 1987, he observed two persons operating all terrain vehicles (hereinafter ATVs, although called ATCs at trial) on his land. After observing the ATVs again about five minutes later, defendant immediately endeavored to follow and locate the trespassers in his truck. He discovered the Giulianos on their ATVs a short distance from his home. When he endeavored to arrest them, a confrontation and scuffle ensued.
At trial there was a factual dispute as to whether the Giulianos had operated their ATVs on defendant‘s property, when defendant identified himself as a police officer and how much force he used in endeavoring to arrest the Giulianos. Ultimately, defendant was able to force or get both Giulianos into his truck and transport them to the Manalapan Police Station. The cross complaints were subsequently filed.1
The cross complaints were tried before the Manalapan Township Municipal Judge on May 19 and June 2, 1987. The Giulianos were represented by counsel, who indicated he was representing them “with respect to the charges lodged against them and prosecuting the charges lodged in turn against Mr. Dwyer
THE COURT: All right. Mr. Dwyer, we‘ll hear you first. Mr. Dwyer, you can take the stand and we‘ll hear your complaints first. In order to hear the whole story at once, even though it‘s a little awkward, I would like to hear the basis of the complaints that you took out against Mr. Paul and Mr. Joseph Giuliano, as well as, whatever you want to tell me with respect to their complaints against you. Okay?
MR. DWYER: As long as I can provide anything —
THE COURT: Yeah, sure. (Indiscernible) to say anything they want to say.
Defendant then testified as to the facts related to the charges he filed against the Giulianos and, at least to some degree, their complaints against him. On his direct testimony, defendant testified that he “grabbed” the Giulianos and indicated that they “struggled.” The cross-examination included questions about defendant‘s efforts to arrest the Giulianos.
After defendant finished his testimony, he indicated that he had no other witnesses on his case. Defendant indicated that he was resting his case unless his wife was available to testify at the next session, and the court indicated that he would give defendant the opportunity to call her at that time. After the court reserved decision on defendant‘s motions for judgment of acquittal or dismissal, the court recessed.
When proceedings commenced approximately two weeks later, defendant moved to dismiss his complaints against the Giulianos under
THE COURT: Okay. All right. That being the case, [Giulianos’ attorney], I think you‘re up.
[GIULIANOS’ ATTORNEY]: I call Patrick Dwyer.
THE COURT: You‘re calling the complainant?
[GIULIANOS’ ATTORNEY]: I‘m calling Mr. Dwyer. He‘s complainant, cross defendant, however you want to call him.
THE COURT: Okay.
FEMALE VOICE: Please be seated. State your name.
MR. DWYER: I‘m Trooper Patrick Dwyer, stationed at Holmdel Barracks.
THE COURT: All right. Before we proceed, since you‘re being called as a witness on the Giulianos case, Mr. Dwyer, we‘re going to treat you as a hostile witness.
MR. DWYER: Okay.
THE COURT: And under those circumstances, [the Giulianos’ attorney], since he‘s calling you as his witness, can ask you questions which would normally not be within the purview of a witness that somebody calls on their own behalf. Okay. With that admonition you can proceed, ....
The Giulianos’ attorney thereupon questioned defendant on much of the subjects previously covered, but he did so as the prosecuting attorney in the case against defendant. In his direct testimony defendant again admitted that he “grabbed a hold” of the collar or lapel of Joseph Giuliano. Thereafter, the Giulianos and their father testified about the events and their injuries and condition after the scuffle.
The court found the evidence insufficient to conclude that the Giulianos were the trespassers on defendant‘s property and acquitted them on all counts. The trial judge also found that defendant was acting as a private citizen and had no right to detain or arrest the Giulianos. He also found, in any event, that defendant unlawfully assaulted both Giulianos and was also guilty of disorderly conduct by creating a dangerous condition. Defendant was acquitted of the disorderly conduct charges related to offensive language. Fines, costs and penalties for the benefit of the Violent Crimes Compensation Board were imposed with respect to each conviction.
II.
First, we do not understand the municipal court judge‘s reference to defendant as a “hostile witness” because he was not uncooperative and did not testify in an unexpected manner. See State v. Hogan, 137 N.J.L. 497, 501 (Sup.Ct. 1948) aff. o.b. 1 N.J. 375 (1949); see also State v. Ross, 80 N.J. 239, 252 (1979) and subsequent amendments to Evid.R. 20, 63(1)(a); State v. Gross, 216 N.J. Super. 98 (App.Div.) certif. den. 108 N.J. 194 (1987); State v. Curtis, 195 N.J. Super. 354, 370 (App.Div.) certif. den. 99 N.J. 212 (1984). While the trial judge‘s declaration that defendant was “hostile” may be attributable to some prejudgment as to his credibility, we do not pursue that question, or the legal principles relating to the contention that defendant‘s actions were justified as a police officer, in light of our disposition on other grounds.
III.
More importantly, the record before us does not reflect any advice by the municipal court judge, either to the parties on these cases or to defendants generally at the outset of these particular proceedings, of their right not to testify.2 In fact,
Although the cases were tried together, cf. R. 7:4-2(f), we do not have to decide whether a complainant must be advised at the outset of proceedings that he need not testify when he is the subject of a cross complaint or counter complaint, after voluntarily filing charges against another. See
In State v. Bogus, 223 N.J. Super. 409 (App.Div. 1988), we recently held that a trial judge has no obligation to inform a defendant who is represented by counsel of his right not to testify. Id. at 426. In that opinion we quoted from Wharton‘s Criminal Practice, § 396 (Torcia 12th ed. 1975):
Absent an applicable statute providing otherwise, neither the trial judge nor the prosecuting attorney is required to warn a witness or the defendant of his privilege against self-incrimination, except that the trial judge may in his discretion impart such a warning. However, where the defendant is not represented by counsel, the trial judge is ordinarily required to inform him of his right not to take the stand. [223 N.J. Super. at 423]. (Emphasis added).
Several state and federal courts have, however, recognized the constitutional right of a pro se defendant to be advised by the trial judge of his right not to testify. See, e.g., United States ex rel. Santana v. Fenton, 570 F. Supp. 752, 759 (D.N.J. 1981), rev‘d on other grounds, 685 F.2d 71 (3d Cir.1982), cert. denied 459 U.S. 1115, 103 S.Ct. 750, 54 L.Ed.2d 968 (1983); R.V.P. v. State, 395 So.2d 291, 293 (Fla.Dist.Ct. of App. 1981); People v. Cundle, 98 Cal. App.3d Supp. 34, 159 Cal. Rptr. 806, 807-808 (Cal.Super. 1979); People v. Jackson, 88 Cal. App. 490, 151 Cal. Rptr. 688, 691-693 (Ct.App. 1978); People v. Wells, 261 Cal. App.2d 468, 68 Cal. Rptr. 400, 408 (Ct.App. 1968); State v. Agresta, 5 Conn.Cir. 242, 250 A.2d 346, 349 (Cir.Ct. 1968); Cochran v. State, 117 So.2d 544, 545-547 (Fla. Dist. Ct. App. 1960); People v. Morett, 272 A.D. 96, 69 N.Y.S.2d 540, 541 (App.Div. 1947). See also Annotation. “Duty of Court to Inform Accused Who Is Not Represented By Counsel of His Right Not to Testify,” 79 A.L.R.2d 643. We agree with the principle and adopt it in this setting.
A defendant always has the right to retain counsel, but counsel will be assigned to an indigent on a non-indictable offense only if he faces actual imprisonment or other consequence of magnitude. See Rodriquez v. Rosenblatt, 58 N.J. 281, 295 (1971); compare Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972). Despite the distinction
Although not argued before us, we have considered application of the harmless error doctrine as it has been employed in some circumstances involving the failure of a trial judge to advise a pro se defendant of his right not to testify. See and compare, e.g., People v. Cundle, supra, 159 Cal. Rptr. at 807-808; People v. Wells, supra, 68 Cal. Rptr. at 408-409; State v. Agresta, supra, 250 A.2d at 349-350; Cochran v. State, supra, 117 So.2d at 547; see also People v. Poindexter, 69 N.C. App. 691, 318 S.E.2d 329 (Ct.App. 1984) (finding no duty to so advise defendant who waived his right to counsel and, in any event, harmless error); People v. Torres, 133 Cal. App.3d 265, 184 Cal. Rptr. 39 (Ct.App. 1982) (finding error harmless). We conclude, however, that the harmless error doctrine should not be applied in a case such as this involving so fundamental an error as the prosecutor calling the defendant to the stand on the State‘s case in the absence of any advice of defendant‘s rights to the contrary by the trial judge. Independent of the Fifth Amendment‘s right against self-incrimination, under Evid.R. 23(1) an accused has a right “not to be called as a witness and not to testify.”
waived any right not to testify by initially testifying in this matter to begin with. He was cross-examined and from his knowledge as a state trooper he knew that he had the right not to take the witness stand when he did testify in this matter in full as to all the circumstances.
We expressly reject the contention that because defendant was a police officer, he was aware of his rights and, therefore, waived his right not to testify against himself. See, e.g. Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967).
Accordingly, we reverse defendant‘s conviction on the simple assault charges. Reversed and remanded for further proceedings consistent with this opinion.