State v. Felton

• Decision Date: 09 December 1974
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Lee Arthur FELTON, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 344

131 N.J.Super. 344

330 A.2d 23

STATE of New Jersey, Plaintiff-Respondent, v. Lee Arthur FELTON, Defendant-Appellant.

Superior Court of New Jersey Appellate Division.

Submitted Nov. 4, 1974.

Decided Dec. 9, 1974.

William F. Hyland, Atty. Gen., for plaintiff-respondent (Julian Wilsey, Deputy Atty. Gen., of counsel and on the brief).

Stanley C. Van Ness, Public Defender, for defendant-appellant (Michael Suffness, Asst. Deputy Public Defender, of counsel and on the brief).

Before Judges MICHELS, MORGAN and KENTZ.

The opinion of the Court was delivered by

MORGAN, J.A.D.

Defendant appeals from his conviction upon a two count indictment charging him with robbery, N.J.S.A. 2A:141--1, while being armed, N.J.S.A. 2A:151--5, contending that reversible error was committed when the prosecutor, in the presence of the jury, made repeated references to the fact that defendant's confederate, one Thomas Williams, had been indicted and convicted for the same crime. Williams did not testify at defendant's trial.

James Melvin, the alleged victim of the robbery, testified that as he left a local poolroom and proceeded to his car in the late afternoon of December 28, 1972, he was accosted by two men with kinves, later identified as Felton and codefendant Williams, who forced him into the front seat of his car where he then sat between the two of them. Once in the car, Williams took $65 from him. Melvin maintained that he had seen defendant earlier in the day.

Thereafter, the three of them drove around for a short period of time during which time Williams allegedly suggested killing Melvin, a suggestion rejected by Felton who expressed the thought that since he had worked with Melvin, Melvin would not tell anyone about the incident. Accordingly, Melvin was released. Once home, Melvin called the police and an unsuccessful search for the assailants ensued. Back at the police station Melvin was told to come back later because he had had a few drinks. Subsequently, Melvin selected defendant's picture from a book of photographs.

Two officers from the Paterson Police Department confirmed Melvin's testimony concerning the search for the assailants and the circumstances in which the photographic identification of defendant was made. The only other evidence introduced on the State's case consisted of testimony confirming that defendant had previously worked with Melvin at Barney's Furniture Store. The State then rested its case.

Felton testified that he and Melvin had known each other previously and had in fact gone drinking together on several occasions. On a prior occasion Felton had loaned Melvin $10 and Felton's requests for repayment of the loan had gone unheeded for three weeks. On the day in question Felton had entered Melvin's car at Melvin's request and the two of them began drinking a pint of liquor which had been left under the seat of Melvin's car. They then had dinner and after returning to the poolroom Felton continued to dun Melvin for repayment of the $10 loan. Melvin finally gave Felton $2, promising to repay the balance at a later time. This part-paypment did not apparently satisfy Felton since an argument concerning the unpaid balance ensued during which Williams joined them and asked for a ride home. Melvin did the driving and all three of them were intoxicated. Melvin and Felton continued to argue about the money and this argument soon led to a fistfight which Williams aided in terminating. Melvin received a bloody nose in the affray and gave Felton $10. After threatening Felton, Melvin departed.

It was on cross-examination of Felton that the prosecutor made the references to the fact that Williams had been indicted for the Melvin robbery and that he had in fact been brought to justice. After examining Felton concerning Felton's knowledge that Williams had been indicted for this robbery, the following transpired:

Q. A man who according to what you told the ladies and gentlemen of this jury several minutes ago is completely innocent of the armed robbery he had been indicted for, just as you are, isn't that correct?

A. That's right.

Q. Are you aware that he was brought to trial and Brought to justice earlier this year in August?

At this point the trial judge intervened, and defendant's counsel registered an objection. The judge sustained the objection although no curative instruction was given to the jury. The prosecutor, nonetheless, continued to inquire of Felton as to his knowledge concerning the fact that Williams had been indicted for this very robbery.

Q. Are you aware, Mr. Felton, that your friend went along for the ride, His case has been disposed of prior to yours; are you aware of that?

A. No.

Q. You're not aware of that?

A. No.

Q. Your attorney hasn't told you that?

MR. MILLER: Objection you Honor, to communication between attorney and client.

THE COURT: Yes. The objection is sustained.

Q. I will withdraw the question. In any event you are aware that your friend Williams was charged with an armed robbery.

A. Yes.

Q. The same armed robbery you were charged with?

A. Yes.

Q. Isn't that correct?

A. Yes.

Q. Have you attempted to subpoena that innocent man who is charged on the basis of Melvin's testimony to bring him into court to corroborate your story?

A. I don't know where he is.

Q. Have you asked your lawyer where he is?

A. No.

MR. MILLER: Objection, your Honor; same basis; attorney client.

THE COURT: He said no he didn't ask.

Q. Have you attempted to find out where he is, Mr. Felton?

A. No.

Q. You haven't?

A. No.

In summation, too, the State laid heavy emphasis upon the fact that Williams had been indicted for this same robbery, clearly intending to imply that he had been adjudicated guilty.

Who would call James Melvin a liar. Could you imagine that? And who would be the first man through that door. Who would be leading the parade? Who would be the number one man to come in here and sit on that witness stand and call James Melvin a liar? Why the man who was indicted for armed robbery as a result of James Melvin's story.

Defendant's objection was sustained by the judge on the ground that 'the defendant said that he did not know the whereabouts of Williams.' The prosecutor continued:

All right. Here is a man, Thomas Williams, who is, according to the defendant, in the defendant's own words, a friend; my friend Williams. The defendant's own testimony. A man--let's talk about facts; who was indicted on the same charge that the defendant in this case was indicted. Williams and Felton. The State of New Jersey vs. Thomas Williams and Lee Arthur Felton.

Another objection made by defense counsel was sustained again on the basis that since defendant did not know where Williams was, he could not produce him. Accordingly, the judge instructed the jury to draw no inference adverse to defendant from his failure to produce Williams.

In his charge the judge informed the jury that the indictment charged both Felton and Williams with commission of the armed robbery in question, advising them that although two persons were charged, only the guilt of defendant Felton was at issue.

The charges against the other defendant have been disposed of. The matter of such disposition should not be of any concern to you since you are only to be concerned with the charges as they relate to this defendant.

The judge then informed the jury of the nature of an indictment, that it is merely a vehicle by which a charge 'against this defendant' comes before the court for trial. The jury was advised that the mere fact that an indictment has been returned provides no evidence of guilt because an indictment is just a formal charge.

The jury convicted defendant of both counts and this appeal ensued.

Defendant contends that the repeated references to the fact that the codefendant had been indicted for the robbery and that, inferentially, he had been adjudicated guilty of this charge constituted reversible error in the absence of any fully sufficient curative charge clearly directed to correcting this error. We agree.

In the context of the present case the intent of the prosecutor in bringing to the jury's attention that Williams had been indicted for the robbery of Melvin and that Williams had been 'brought to justice' on this charge is quite clear. Felton's testimony connected his own innocence of the charge to that of Williams, and the prosecution was trying to suggest to the jury that Williams was guilty as a basis for the inference that Felton was equally so. The prosecutor implemented this strategy by laying stress on the fact that Williams had been indicted, thus inviting the jury to infer Felton's guilt from the fact that he had been indicted. Clearly, the invited inference was not a permissible one. An indictment is no evidence of guilt of the charges contained therein, as the court's own instruction noted with respect to Felton's indictment. Trap Rock Industries, Inc. v. Kohl, 115 N.J.Super. 278, 279 A.2d 138 (App.Div.1971), rev'd 59 N.J. 471, 284 A.2d 161 (1971); State v. Orecchio, 16 N.J. 125, 106 A.2d 541 (1954).

Although this error might not have been considered prejudicial if coupled with a sufficiently explicit instruction to the jury to ignore it, reference to the disposition of the charges against Williams without any curative instruction constitutes error of such magnitude as to require reversal.

Although the prosecutor was precluded from informing the jury in explicit terms of Williams' conviction of the Melvin robbery, there is no question but that the repeated references to Williams having been indicted, together with the suggestion that he had been brought to justice earlier in the year, sufficed to convey the fact of Williams' conviction to the Felton jury. Evidence concerning conviction of a codefendant is improper. In State v. Costa, 11 N.J. 239, 94 A.2d 303 (1953), a case involving the charge of keeping a gambling place, the State produced five codefendants, each of whom had been...