State in Interest of W. O., In re

• Decision Date: 16 April 1968
• Docket Number: No. A--1089,A--1089
• Citation: 100 N.J.Super. 358,242 A.2d 17
• Parties: In re STATE of New Jersey in INTEREST OF W.O., a Juvenile.
• Court: New Jersey Superior Court — Appellate Division

Page 358

100 N.J.Super. 358

242 A.2d 17

In re STATE of New Jersey in INTEREST OF W.O., a Juvenile.

No. A--1089.

Superior Court of New Jersey Appellate Division.

Argued Nov. 20, 1967.

Decided April 16, 1968.

Elliot M. Baumgart, Newark, assigned counsel, for appellant juvenile (Stephen R. Bing and Mark Gasarch, Newark, of counsel and on the brief).

James R. Zazzali, Asst. Prosecutor, for the State as respondent (Brendan T. Byrne, Essex County Prosecutor, attorney).

Before Judges CONFORD, COLLESTER and LABRECQUE.

The opinion of the court was delivered by

LABRECQUE, J.A.D.

W.O., a juvenile aged 17, appeals from his conviction in the Essex County Juvenile Court on charges of robbery and larceny.

The larceny complaint charged that on January 20, 1967 he took the sum of $9 from Edward James. The robbery complaint charged that, at the point of a black revolver, he took 81 cents from Ronald Chapman, $2 from William Chapman and $1 from Nathaniel Johnson on January 21, 1967.

Hearings on the two complaints took place on the same day, the January 21 complaint being first tried. Appellant contends that prior to the taking of testimony his counsel moved that all witnesses be sequestered. The motion was granted as to all except the two police officers (attached to the Youth Aid Bureau) who had signed the complaints. Later, when the three complaining witnesses to the occurrence of January 21 were called into the courtroom together, counsel moved to sequester them so that they would not be testifying in one another's presence but they were permitted to remain.

In the absence of a stenographic record, a 'statement of proceedings' was prepared by the trial judge pursuant to R.R. 1:6--3, made applicable by R.R. 2:6. It recited that Johnson and the two Chapman boys testified that they had been shopping on Springfield Avenue, Newark, when appellant, dressed in a black leather coat and a 'tam' hat, came up to them and asked for money. He produced a revolver (William Chapman, the oldest of the three, didn't think it was a real one) which one of them thought was 'as much as eight or nine inches long.' Appellant thereupon took $2 from William, 81 cents from Ronald and $1 from Johnson and fled. The police were notified and, on the basis of a description obtained from the three boys, appellant was picked up. The three later identified him at the Fourth Precinct. Two of them testified that they had seen him once after the robbery, at which time he had again tried to obtain money.

The other complaining witness, Edward James, aged 14, testified that on January 20, as he was walking down Branford Place, Newark, the appellant and another boy asked him if he had 50 cents. When he said no, appellant, who was wearing a tam hat and a dark jacket, took his wallet containing $9 and fled. He, too, reported the incident to the police and picked out the appellant from a number of pictures shown to him by the police. Later, when the police brought appellant to Clinton Place Junior High School, he identified him in person.

Appellant denied being present on either occasion, asserting that he had never seen any of the complainants until the day they identified him and that on January 20 and 21 he was working for Harvey Smith, his brother-in-law, at the latter's furniture warehouse. Smith, called as a witness, was unable to positively state that appellant was on the job on the two days in question but said that he had a record book at home which would show this. He was excused from the stand to secure the book and return with it but failed to do so. Later, after several telephone calls from the court, one of his employees produced a ledger which, upon examination, was found to contain nothing to indicate that appellant had been at work there on January 20 or 21. This same employee was permitted to testify and said that on some day--he did not know the day of the month but it was when appellant was accused of taking money from a boy--appellant had been working with him.

No case has been cited in which our courts have had occasion to pass upon whether a motion for sequestration is properly cognizable at the trial of a complaint under the Juvenile Act, N.J.S. 2A:4--1 et seq., N.J.S.A. Such proceedings have been held to be rehabilitative rather than penal. In re State in the Interest of Carlo, 48 N.J. 224, 225 A.2d 110 (1966); N.J.S. 2A:4--2. The rules of evidence do not apply to the same extent as in ordinary criminal cases. See Annotation, 'Applicability of rules of evidence in juvenile delinquency proceeding,' 43 A.L.R.2d 1128 (1955). The full complement of constitutional rights does not attach. Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966); In re State in the Interest of Carlo, supra, 48 N.J. pp. 234--235, 225 A.2d 110; Ex parte Newkosky, 94 N.J.L. 314, 316--317, 116 A. 716 (Sup.Ct.1920).

However, in In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967) it was held that proceedings in the Juvenile Court were subject to the constitutional requirement of due process of law. And in In re State in the Interest of Carlo, supra, a juvenile was held entitled to the constitutional safeguard of voluntariness in connection with the use of his alleged confession. Further, in State in the Interest of L.B., (J. & D.R.Ct.1968) it was held that a motion to suppress evidence obtained by an unlawful search and seizure was cognizable in the Juvenile and Domestic Relations Court.

There can be no doubt as to the right to cross-examine witnesses in a proceeding in the Juvenile Court. In re Gault, supra, 387 U.S. at page 57, 87 S.Ct. 1428. We perceive no reason why the procedural tool of sequestration, which is calculated to prevent witnesses from being 'educated' by the testimony of the witnesses who precede them, should not likewise be available to juvenile defendants. Wigmore, quoting the Bible story of Daniel's judgment in Susanna's case as one of its earliest applications, ranks it just below cross-examination as a device to expose untruthfulness. 6 Wigmore, Evidence (3d ed. 1940) § 1837 et seq. As far back as State v. Zellers, 7 N.J.L. 220, 226 (Sup.Ct.1824) the then Chief Justice noted that:

'We have often made rules to that effect, to prevent their hearing what the other witnesses detail in their evidence, for the less a witness hears of another's testimony the more likely is he to declare his own knowledge simply and unbiassed.'

Generally, the granting or denial of a motion for sequestration is a matter calling for the exercise of the court's sound discretion, having in mind the circumstances of the particular case. State v. Williams, 29 N.J. 27, 46, 148 A.2d 22 (1959). Ordinarily, such a motion should be granted and its denial should be based upon sound reasons.

We can conceive of no reason which would have compelled exclusion of the two police officers. While they were Pro forma complainants they had no personal knowledge of the commission of the offenses charged. As officers connected with the Youth Aid Bureau it was within the court's discretion to permit them to remain. State v. Barts, 132 N.J.L. 74, 83--84, 38 A.2d 838 (Sup.Ct.1944), affirmed 132 N.J.L. 420, 40 A.2d 639 (E. &A.1945). Likewise, no reason appears why James should have been excluded since he was the Sole witness to the offense of January 20, 1967.

We are inclined to the view that the motion should have been granted as to William Chapman, Ronald Chapman and Nathaniel Johnson but conclude that appellant suffered no prejudice from the court's failure to do so. The key issue upon which the case rested was the identification of appellant. There was no possibility that the testimony of one of them would have served to 'educate' the others since two of them had seen appellant after the commission of the offenses and all had previously identified him at police headquarters. Our consideration of their testimony as revealed in the court's statement (and appellant's proposed statement as well) satisfies us that appellant suffered no harm from their simultaneous presence in the courtroom. Cf. State...