State v. Dwyer
| Citation | 552 A.2d 200,229 N.J.Super. 531 |
| Parties | STATE of New Jersey, Plaintiff-Respondent, v. Patrick DWYER, Defendant-Appellant. |
| Decision Date | 06 January 1989 |
| Court | New Jersey Superior Court – Appellate Division |
Wolff, Helies & Duggan, for defendant-appellant (John Peter Duggan, Red Bank, on the brief).
John Kaye, Monmouth County Prosecutor, for plaintiff-respondent (Mark P. Stalford, Asst. Prosecutor, of counsel and on the letter brief).
Before Judges PRESSLER, SCALERA and STERN.
The opinion of the court was delivered by
STERN, J.A.D.
Defendant appeals from his convictions on two counts of simple assault, N.J.S.A. 2C:12-1a. The convictions followed a trial on cross complaints filed in the Manalapan Township Municipal Court. We reverse and remand for a new trial.
Defendant filed complaints charging Joseph and Paul Giuliano with criminal trespass, N.J.S.A. 2C:18-3, and several motor vehicle violations. The Giulianos also filed complaints against defendant alleging two counts of simple assault, N.J.S.A. 2C:12-1a, two counts of harassment, N.J.S.A. 2C:33-4, and four counts of disorderly conduct, N.J.S.A. 2C:33-2. The events leading to the cross complaints followed the arrest of the Giulianos by defendant, an off duty New Jersey State trooper.
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 ...". In response to questions posed by the judge at the outset of the trial, defendant indicated that he was representing himself, that he had "no problem in that regard," that he had had an opportunity to retain counsel and that he was voluntarily acting as his own attorney. When the Giulianos' attorney indicated to the judge that defendant had filed his complaints "first in point of time," the following colloquy occurred:
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 N.J.S.A. 39:3-10 and 39:3-29, because his research revealed no need for a driver's license for an ATV. After discussion of other matters, defendant indicated that his wife was in the hospital and asked only to introduce into evidence a tax map which was entered as a joint exhibit. Defendant noted thereon the location where he claimed the ATVs had been operated.
Thereafter, defendant again indicated that his case had been completed, and the court called upon the Giulianos' attorney to proceed. The attorney immediately called defendant as a witness. The record reflects the following:
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.
On trial de novo in the Law Division defendant, then represented by counsel, was again convicted of the assault charges, but the judge dismissed the charges involving harassment and disorderly conduct. The same fines, costs and penalties were imposed on the assault convictions following the trial de novo as were imposed in the Municipal Court. R. 3:23-8(e).
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, 61 A.2d 70 (Sup.Ct.1948) aff. o.b. 1 N.J. 375, 63 A.2d 886 (1949); see also State v. Ross, 80 N.J. 239, 252, 403 A.2d 457 (1979) and subsequent amendments to Evid.R. 20, 63(1)(a); State v. Gross, 216 N.J.Super. 98, 523 A.2d 215 (App.Div.) certif. den. 108 N.J. 194, 528 A.2d 19 (1987); State v. Curtis, 195 N.J.Super. 354, 370, 479 A.2d 425 (App.Div.) certif. den. 99 N.J. 212, 491 A.2d 708 (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.
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 with the exception of the questions asked of defendant concerning whether he elected to represent himself, the record before us contains no information about advice of any kind. We find significant the fact that defendant, as a pro se party, was called to testify as the Giulianos' witness in their case against him, and that he so testified independent of his testimony on the complaints filed by him against the Giulianos.
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 N.J.S.A. 2A:84A-19; Evid.R. 25(d); see also N.J.S.A. 2A:84A-17 to -18; Evid.R. 23-24. Nor need we consider any issue regarding the requirement for such warnings if the cross or counter complaint against defendant had been disposed of before he testified. 3 Here, although the subject matter of defendant's testimony related to his complaints and the transaction involved therein, defendant was improperly called by the prosecuting attorney in the case against him, and the judge did nothing to warn defendant of his right not to testify at that time. We therefore hold that, absent appropriate warnings by the trial judge and waiver by defendant of his rights not to testify against himself, defendant's conviction must be reversed because he was called by the prosecuting attorney as a witness on the case against...
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