State v. FournierState v. Fournier
The two defendants were convicted of robbing one Wittig at night behind the victim‘s home. They appeal on sevеral grounds.
We cannot agree with the ground of appeal that the verdicts were against the weight of the evidence. Although there were some inconsistencies in the identifications of the defendants by Wittig, particularly when one compares his prior out-of-court identifications with his testimony in court, this was a matter for appraisal by the jury. There was other substantial corroborative evidence of guilt of both men.
As to the allowance of testimony of out-of-court identifications of defendants by Wittig, we do not accept the argument that the mere fact that defendants were identified singly while in the custody of the police and not from a lineup renders thе identifications so unfair or unreliable as to come within the admonition in State v. Williams, 39 N.J. 471, 489 (1963). There was no error in this regard.
Both defendants complain of the failure of the trial cоurt to charge or instruct the jury not to draw any inference unfavorable to the accused from the fact that a witness called by the State refused to answer questions put to him on the ground of self-incrimination. One Lillian Clark, a “girl friend” of defendant Schlatter, testified for the State that she heard Schlatter tell one Hagstrom the night of the crime that he had “held up someone and got checks and credit cards.” Hagstrom was next called by the State, and, after answering a question as to where he lived, refused to answer the following questions оn grounds of self-incrimination: (1) whether he knew the defendants; (2) whether he was questioned by the Garfield police; (3) whether he subsequently gave the police a statement; (4) whether he was asked questions which were taken down and transcribed;
The court at that point shut off further interrogation upon satisfying itself the witness would answer no questions connected with the case. The court neither gave nor was requested by defense counsel to give any instructions to the jury not to draw any inferences against defendants from the witness‘s claim of constitutional privilege.
As a result of inquiry by the court at oral argument, counsel have submitted conflicting affidavits as to whether the prosecutor knew before putting Hagstrom on the stand that he intended not to testify on the basis of privilege. Under the cirсumstances we cannot assume that he had such knowledge. The prosecutor has submitted to the court a copy of a signed stаtement by the witness given the police prior to trial indicating knowledge of the crime and possible implication as an accessory after the fact and argues he was justified thereby in assuming Hagstrom would cooperate at trial.
A good annotation of the law concerning the prejudicial effect of the offering by the prosecution of a witness, apparently in complicity with a defendant, who refuses to testify on grounds of constitutional privilege, is contained in 86 A.L.R.2d 1443 et seq. (1962). The predominant view is that there may be prejudicial error in such a tactic and that reversal will ensue if the prosecutor knew in advance or had good reason to beliеve the witness would claim his privilege
We think that sound practice in such a situation as this calls for the prosecutor‘s making inquiry of the witness in advance as to whеther he intends to testify and then informing the court and defense counsel of the result of the inquiry before adducing the proofs in open сourt. If the prosecutor, though having reason to believe the witness will plead his privilege, wishes to test his intent to do so by putting him on the stand and asking the questions, this should be done in the first instance out of the presence of the jury. Thus can needless prejudice be avoided. For a similar recommendation in a comparable situation, see State v. Guido, 40 N.J. 191, 200 (1963).
Under all the circumstances here manifested, particularly the absence of indication at the trial that the prosecutor knew or reasonably should have known Hagstrom would assert privilеge and the failure of defendants to request the instructions whose absence they now complain of, we do not feel a revеrsal on this ground is here called for. Moreover, the arguably prejudicial sting of Hagstrom‘s plea of privilege is to considerable degree neutralized by the fact that the jury already had proof, through the testimony of Mrs. Clark, that Schlatter had admitted his guilt to Hagstrom.
Affirmed.