State v. Chaney

• Citation: 388 A.2d 1283,160 N.J.Super. 49
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Frank J. CHANEY and Johnnie Chaney, Defendants-Appellants.
• Decision Date: 06 June 1978
• Court: New Jersey Superior Court – Appellate Division

Page 49

160 N.J.Super. 49

388 A.2d 1283

STATE of New Jersey, Plaintiff-Respondent, v. Frank J. CHANEY and Johnnie Chaney, Defendants-Appellants.

Superior Court of New Jersey, Appellate Division.

Argued Jan. 4, 1978.

Decided June 6, 1978.

Barbara R. Lependorf, Princeton, designated counsel, for defendants-appellants (Stanley C. Van Ness, Public Defender, attorney).

Alan Dexter Bowman, Deputy Atty. Gen., for plaintiff-respondent (John J. Degnan, Atty. Gen., attorney; William F. Hyland, former Atty. Gen., on the brief).

Before Judges LORA, SEIDMAN and MILMED.

The opinion of the court was delivered by

SEIDMAN, J. A. D.

Frank J. Chaney ¹ and his brother, Johnnie Chaney, were indicted for (1) the murder of one Alvin Gaillard, "then and there being armed with and having in their possession a certain dangerous weapon, to wit, a revolver," in violation of N.J.S.A. 2A:113-1; 2A:113-2 and 2A:151-5; (2) an assault upon one Cheryl Daniels (referred to at the trial as Cheryl Rencher) with a dangerous weapon with intent to kill, in violation of N.J.S.A. 2A:90-2 and 2A:151-5, and (3) possession of a revolver without a permit therefor (N.J.S.A. 2A:151-41). Johnnie Chaney was separately charged in another count with threatening to take the life of the said Cheryl Daniels (N.J.S.A. 2A:113-8).

Both were found guilty as charged ² at a jury trial. Motions for a judgment of acquittal or, in the alternative, for a new trial were heard and denied. Each was sentenced to life imprisonment for the murder and to a consecutive term of 5 to 10 years for committing the murder while armed; to concurrent terms of 5 to 10 years and 3 to 5 years for, respectively, the assault with intent to kill and the commission of the offense while having in his possession a firearm, and to a further concurrent term of 3 to 5 years for the unlawful possession of a weapon. Defendant Johnnie Chaney was additionally sentenced to a concurrent term of 5 to 7 years for the threat to kill.

Defendants appeal, setting forth in their brief the following contentions:

POINT I.

The trial court's refusal to grant the defendants' motion to sever the fourth count of the indictment constituted reversible error.

POINT II.

The trial court by calling Cheryl Daniels Rencher as a court witness abused its discretion, which abuse resulted in prejudice to the defendants constituting reversible error.

POINT III.

As the totality of the circumstances surrounding the eyewitness' pre-trial confrontations were unnecessarily suggestive and conducive to irreparable mistaken identification, it was error to admit both the pre-trial identification and the in-court identification.

POINT IV.

The trial court abused its discretion by permitting rebuttal testimony by a TWA representative and a stewardess.

POINT V.

It was plain error for the trial court to limit the jury to a finding of a verdict of guilty of first degree murder or an acquittal.

POINT VI.

The verdict was fatally defective as it failed to specify the degree of murder of which the defendants were found guilty.

POINT VII.

The cumulative effect of trial errors deprived defendants of a fair trial under our system of justice and a new trial should be granted.

In a supplemental Pro se brief "On Behalf of both Defendants," defendant Johnnie Chaney argues that "the trial court should have granted the motion for judgement (Sic ) of acquittal or a new trial."

Alvin Gaillard was shot to death at about 7:30 p. m. on February 22, 1974 as he left his dry cleaning store located at Ocean and Virginia Avenues in Jersey City, and was about to get into his automobile which was parked nearby. His companion, Cheryl Rencher (Daniels), was the only eyewitness known to the police. Her identification of defendants as the culprits led to their apprehension and subsequent indictment and trial. ³ Defendants denied having been implicated in the murder and related offenses. Each claimed to have been elsewhere at the time of the murder. Frank Chaney maintained that he was at the home of a friend and produced corroborating witnesses. The defense offered by Johnnie Chaney was that he had left for California two days earlier and was there when the shooting occurred.

We deal first with defendants' contention that the trial judge abused his discretion "by calling Cheryl Daniels Rencher as a court witness * * * which abuse resulted in prejudice to the defendants constituting reversible error."

Except in rebuttal, the only witness produced before the jury by the State was the county medical examiner, whose testimony related to the cause of death as determined by the autopsy he had performed on decedent's body. Over defense objection, Mrs. Rencher, obviously a key witness without whom the State could not have placed defendants at the scene of the crime, was allowed to testify as a court witness on the motion of the prosecutor, who was apprehensive of her reliability as a witness. The request was made at the conclusion of a protracted preliminary inquiry held by the trial judge out of the presence of the jury to determine the admissibility of Mrs. Rencher's out-of-court and anticipated in-court identification of defendants. Mrs. Rencher was thereupon summoned as a court witness. The direct examination of the witness was conducted by the trial judge. It was followed by cross-examination by each defense attorney and the prosecutor, in that order.

Defendants complain that to their "great prejudice * * * the prosecutor was placed in a position of being able to bolster the credibility of the only eyewitness to the crime, by giving the witness the opportunity of repeating the testimony she had given when questioned by the court when again questioned by the State."

There were indeed inconsistencies and contradictions in Mrs. Rencher's testimony, and her credibility was further impaired by other witnesses produced in behalf of defendants. The most significant discrepancy related to her identification of the defendants. Her version on the Voir dire (later substantially repeated to the jury) was that as she was standing on the sidewalk at the passenger door of the automobile waiting for Gaillard to unlock the door on the driver's side, a car containing three men drove up alongside, squeezing decedent between the two cars. She recognized the driver as John Chaney, having seen him on other occasions. She could not identify the person in the rear of that car. Someone called out, "Hey, Alvin," and the passenger, who was armed with a revolver, began firing at decedent. She heard one of the occupants say, "Shoot the bitch," and a shot was fired in her direction. The assailants' automobile then sped away.

When Mrs. Rencher was taken to police headquarters shortly thereafter, she saw among a number of photographs on a bulletin board in the detectives' room one which she recognized to be Johnnie Chaney. She immediately told one of the detectives that it was the man who had driven the car. However, detectives testified that in a written statement given by her later that night, and in another one several days later, she said that the photograph on the bulletin board was that of the passenger who had shot decedent. Mrs. Rencher denied making such statement.

Mrs. Rencher further testified on Voir dire that the police showed her another photograph which she identified as "the man that shot Alvin." She was told the photograph was of Frank Chaney. When he was brought into headquarters later that night, she again identified him as the man who had done the shooting.

Other inconsistencies related to her describing the car as an Oldsmobile whereas she had previously said it was a Plymouth; to her description of the pistol used in the shooting, and to whether she had crouched down after the firing of the first shot or after the fifth or sixth shot. Furthermore, after she denied on cross-examination ever having said that the shots were fired from the sidewalk, Johnnie Chaney's former attorney, called as a witness on his behalf, testified that during the first trial Mrs. Rencher had told him in a telephone conversation that the shooter, who looked like Frank Chaney, was on the sidewalk when the episode took place and that she had given that information to the police.

The prosecutor expressed concern over Mrs. Rencher's Voir dire testimony, noting that the trial judge, while denying defendants' motion to exclude the evidence bearing upon their identification, had nevertheless found Mrs. Rencher's testimony "to be untrustworthy." He acknowledged his previous awareness of "the inconsistencies as they relate to the testimony here," and of a witness (the former defense attorney) on whose testimony "we have a case of recanting on the part of Mrs. Rencher." He indicated that if he put her on the stand, he would have to "vouch for the credibility of that witness." It was his position that "we should have the right just as any other counsel has the right to cross-examine the witness to find out what the truth is. * * * "

The calling of a court witness is a matter generally within the sound discretion of the trial court. See State v. Andreano, 117 N.J.Super. 498, 502, 285 A.2d 229 (App.Div.1971); Annotation, "Court's witnesses (other than expert) in criminal prosecution," 67 A.L.R.2d 538 (1959). See also, State v. Singleton, 158 N.J.Super. 517, 523, 386 A.2d 880, 883 (App.Div.1978). The exercise of that discretion should not be reversed except for an abuse thereof resulting in prejudice to the defendants. United States v. Wilson, 447 F.2d 1, 8 (9 Cir. 1971).

We are somewhat doubtful of a compelling need for the trial judge to have called Mrs. Rencher as a court witness. There was no indication of any potential recantation by the witness, or that she would depart to any material extent from her anticipated testimony. Cf. State v. Singleton, supra. The feared contradictions and inconsistencies were for the most part known to the prosecutor. Actually, despite the vigorous assault upon...