State v. Di Modica

• Decision Date: 12 March 1962
• Docket Number: No. A--599,A--599
• Citation: 73 N.J.Super. 1,179 A.2d 17
• Parties: The STATE of New Jersey, Plaintiff-Respondent, v. Vincent DI MODICA, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 1

73 N.J.Super. 1

179 A.2d 17

The STATE of New Jersey, Plaintiff-Respondent, v. Vincent DI MODICA, Defendant-Appellant.

No. A--599.

Superior Court of New Jersey

Appellate Division.

Argued Feb. 5, 1962.

Decided March 12, 1962.

Frederick Klaessig, Jersey City, for appellant.

C. William Caruso, Legal Assistant Prosecutor, Newark, for respondent (Brendan T. Byrne, County Prosecutor of Essex County, Newark, attorney).

Before Judges PRICE, SULLIVAN and LEWIS.

The opinion of the court was delivered by

SULLIVAN, J.A.D.

Defendant was indicted for robbery (first count) while armed (second count).

After trial by jury he was convicted on both counts. He appeals, charging that the record of his trial is replete with prejudicial error.

On September 6, 1958, shortly after closing hours, Donald W. Griffith, Anthony C. Belenski and Mel Byers, employees of the Good Deal Supermarket in West Orange, were held up and robbed by an armed man who made off with several thousand dollars of the store's receipts.

Defendant was not connected with the robbery for about a year and a half, when, as a result of information received by the West Orange Police, Griffith and Belenski went to State Prison on April 6, 1960, and after seeing defendant in a lineup, identified him as the robber.

At the trial Griffith, Belenski and Byers positively identified defendant as the armed man who had robbed them on September 6, 1958. Defendant's defense was that of alibi. Thus, the basic issue submitted to the jury was whether or not defendant was the robber. As heretofore noted, the jury found defendant guilty.

During the course of the trial, after the direct examination of Griffith, the State's first witness, had been completed, counsel for defendant moved to exclude the State's other two identification witnesses from the courtroom during the cross-examination of Griffith. The trial court denied the application, and defendant charges that this ruling constitutes prejudicial error.

Ordinarily, in a criminal cause, a motion to exclude the State's witnesses from the courtroom prior to their actually testifying should be granted. State v. Williams, 29 N.J. 27, 46, 148 A.2d 22 (1960). However, the granting or denial of such a motion is for the sound discretion of the trial judge under the circumstances of the particular case. State v. Williams, supra; State v. Barts, 132 N.J.L. 74, 38 A.2d 838 (Sup.Ct. 1944), affirmed on opinion below 132 N.J.L. 420, 40 A.2d 639 (E. & A.1945). Here, defendant's motion was not made until after the direct examination of Griffith had been completed, and was limited to excluding the other two identification witnesses during the cross-examination of Griffith. Under these circumstances the reasons underlying exclusion no longer existed to any substantial degree. Kaufman v. U.S., 163 F.2d 404 (6 Cir. 1947); People v. Winchester, 352 Ill. 237, 185 N.E. 580 (Sup.Ct.1933). Further, defendant's argument is purely theoretical since the record does not show that there was anything brought out on cross-examination which served to 'educate' the subsequent witnesses. State v. McLeod, 131 Mont. 478, 311 P.2d 400 (Sup.Ct. 1957). Because of this, no abuse of discretion or prejudice to defendant has been shown.

Defendant also charges that the trial court erred in denying defendant's motion for access to the grand jury testimony of State's witness Griffith for the purpose of cross-examining such witness at trial. This point grew out of the following trial incident. Counsel for defendant, during his cross-examination of State's witness Griffith, applied 'for a transcript of the grand jury minutes of this witness' on the ground that the 'defendant is entitled to the benefit of any contradictions or inconsistencies in this man's testimony as possible (sic) revealed by his grand jury testimony.' The prosecutor resisted the application on its merits and also had this to say:

'If your honor please, there is an additional problem in a great many of these cases in that we do not take a stenographic transcript. I don't know if we have one, if the court so provides.'

The trial court denied the application stating, 'But in this posture of the case since there is nothing before the court indicating that he contradicted himself, I am not going to order the prosecutor to produce a transcript during the course of the trial.'

Defendant argues that as a matter of right he is entitled to a transcript of the testimony before the grand jury of every State's witness so that he may explore the possibility of contradictory stories. Defendant also contends that the circumstances of the instant case demonstrate 'a particularized need' for the production of the grand jury testimony.

These contentions are unsound. A defendant in a criminal trial does not have an absolute right to a transcript of the testimony of the State's witnesses before the grand jury. State v. Mucci, 25 N.J. 423, 136 A.2d 761 (1957), and State v. Moffa, 64 N.J.Super. 69, 165 A.2d 219 (Law Div. 1960), affirmed 36 N.J. 219, 176 A.2d 1 (1961), relied on by defendant, do not so hold. In Mucci, on the morning of trial, the State's witnesses were furnished with copies of their testimony before the grand jury which they read and discussed. Also at the trial a transcript of such testimony was in the prosecutor's possession and available for use by defendant's counsel on cross-examination. Under these circumstances it was held that the grand jury testimony should have been made available to defendant. The Moffa case dealt with indictments for false swearing and procuring another to commit perjury, where the indictments arose out of testimony before a grand jury and set forth specifically the grand jury testimony. There, prior to trial, the defendant applied for a copy of such testimony. It was held that since the indictments had their genesis in the testimony before the grand jury, the defendant had a right to examine it.

Generally, grand jury proceedings are held to be secret. R.R. 3:3--7. However, the veil of nondisclosure may be lifted when the ends of justice so require. State v. Mucci, supra; State v. Moffa, supra. A defendant in a criminal case who seeks to...