State v. Fusco

• Decision Date: 14 July 1983
• Citation: 93 N.J. 578,461 A.2d 1169
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Lawrence J. FUSCO, II, Defendant-Appellant.
• Court: New Jersey Supreme Court

Page 578

93 N.J. 578

461 A.2d 1169

STATE of New Jersey, Plaintiff-Respondent, v. Lawrence J. FUSCO, II, Defendant-Appellant.

Supreme Court of New Jersey.

Argued May 9, 1983.

Decided July 14, 1983.

John J. D'Anton, Designated Counsel, Ridgefield, for defendant-appellant (Joseph H. Rodriguez, Public Defender, attorney).

Marc J. Friedman, Asst. Prosecutor, for plaintiff-respondent (George L. Schneider, Essex County Prosecutor, attorney).

Ronald Susswein, Deputy Atty. Gen., for amicus curiae Atty. Gen. of the State of N.J. (Irwin I. Kimmelman, Atty. Gen., attorney).

The opinion of the Court was delivered by

GARIBALDI, J.

This appeal involves defendant's right to assistance of counsel, pursuant to the Sixth Amendment to the United States Constitution and Article I, Paragraph 10 of the New Jersey Constitution. Specifically, the issue presented is whether a court order prohibiting defendant from discussing his testimony with his attorney during an overnight recess deprives defendant of his constitutionally guaranteed right to assistance of counsel. We hold that it does.

Defendant, Lawrence J. Fusco, II, was charged in two indictments with murder while armed, in violation of the then-applicable statutes, N.J.S.A. 2A:113-2 and N.J.S.A. 2A:151-5. The indictments arose out of incidents occurring on July 15, 1979 that resulted in the death of Vincent Marolda. Undisputed testimony at trial revealed that for over a year prior to the murder, defendant dated Michelle Marolda, the victim's wife, who was then separated from her husband. Shortly before the murder, Michelle informed defendant that she wished to end their relationship. The State's witnesses testified that defendant, fearing Michelle would return to her husband, desperately enlisted the aid of two friends, Robert Thompson and Rhoda Leeb, and thereafter ambushed and murdered the victim.

While in jail awaiting trial for the Marolda murder, defendant was indicted for conspiring with another inmate to have Robert Thompson, the key witness against him, murdered. Defendant was then indicted for conspiracy to commit Thompson's murder in violation of N.J.S.A. 2C:5-2. The indictments subsequently were consolidated for trial.

Because the State's case rested largely on circumstantial evidence, defendant's attorney requested at the pretrial conference that witnesses be sequestered during trial. The following stipulation appeared as Item 18 in the pretrial memorandum:

18. Reciprocal sequestration and a witness on the stand whose direct testimony shall have been completed shall not be spoken to by the attorney who calls him insofar as his testimony is concerned. Sequestration is interpreted that deft's witnesses may be present during the State's case and the State's witnesses during the deft's case.

At the outset of trial, the trial court reminded the attorneys that Item 18 of the pretrial memorandum required witnesses to be sequestered. Several times during the two-week trial the court invoked the provisions of Item 18. ¹ Similarly, as the defense was about to present its case, the court again reminded counsel of the sequestration order.

On March 26, 1980, defendant took the stand, ² and in the midst of his cross-examination, the court indicated that it would recess for the day. After the jury left the courtroom, defendant, who remained on the stand, addressed the trial judge regarding the prosecutor's questions:

THE WITNESS [Defendant]: Your Honor, could I ask you a question?

THE COURT: Yes, Mr. Fusco.

THE WITNESS: Your Honor, Mr. Menz asked me the question before and I never got to completely finish. He went completely away from it on this here.

THE COURT: So you say this here, you mean what?

THE WITNESS: The Statements like this me here saying that the Police did it on August 23 and then yet it's typed August 22. He went away from the question completely on me.

THE COURT: You may review that.

THE WITNESS: It just baffles me, sir. I'm trying to understand a little bit too because it's my life on the line.

THE COURT: You may review that with your attorney.

MR. MENZ: Excuse me, your Honor. He may not as I understand the Court ruling most respectfully.

THE COURT: Yes, that is correct.

MR. GROSS: I'm not allowed to talk to my client?

THE COURT: You'll recall I believe it was your request in fact, Mr. Gross that no witness would be spoken to until after direct until the time--

MR. GROSS: It was my request but I certainly didn't interpret that to mean my client. I can't imagine the [S]ixth [A]mendment going to serve by saying any time a defendant in a criminal case should be barred from speaking to his counsel.

MR. MENZ: Your Honor, that was counsel's request and it's on the record.

MR. GROSS: No, sir, there's nothing on the record that I said that I couldn't talk to my client any time.

At this point the court and both counsel engaged in an extended argument over the scope and meaning of the sequestration order. ³ Defendant's counsel, however, continued to insist that defendant was "entitled to the sanction and opportunity to visit with his attorney." At the close of the argument, defendant's counsel finally agreed that he would not discuss the defendant's testimony or cross-examination with him but would only "counsel with him." The court then recessed for the evening. When the trial resumed the next morning, no further mention was made of the sequestration order.

The jury found defendant guilty on all counts, and he was subsequently sentenced to life imprisonment, with a concurrent five to seven year sentence for being armed. A consecutive seven year sentence also was imposed for conspiracy to commit murder.

Defendant raised ten issues on appeal, one of which was that the court's order prohibiting him from discussing his testimony with counsel during the overnight recess violated his right to assistance of counsel under the federal and state constitutions. The Appellate Division found the balance of defendant's arguments meritless and affirmed the convictions. The Appellate Division did, however, observe that the trial judge had incorrectly restricted defendant's communication with his attorney. Nevertheless, because this restriction did not prejudice the defendant and because defendant's guilt was "inescapably apparent," the Appellate Division did not require a reversal of the judgment.

We granted defendant's petition for certification, ⁴ 91 N.J. 568, 453 A.2d 880 (1982), limited solely to the issues arising from the trial court's order restricting defendant's communication with counsel. We reverse the Appellate Division's judgment and remand for a new trial.

I

The Sixth Amendment, applicable to the states by virtue of the Fourteenth Amendment, Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), guarantees that in a criminal prosecution the "accused shall enjoy the right ... to have the Assistance of Counsel for his defense." The New Jersey Constitution contains almost identical language. ⁵

While several lower courts have held that an order prohibiting a defendant in a criminal action from consulting with his attorney during an overnight recess violates the defendant's constitutional right to assistance of counsel, e.g., United States v. Venuto, 182 F.2d 519 (3d Cir.1950); People v. Noble, 42 Ill.2d 425, 248 N.E.2d 96 (1969); Commonwealth v. Werner, 206 Pa.Super. 498, 214 A.2d 276 (1965), the watershed case on this issue is the United States Supreme Court decision in Geders v. United States, 425 U.S. 80, 96 S.Ct. 1330, 47 L.Ed.2d 592 (1976).

The defendant in Geders had been indicted for drug offenses and chose to testify in his own defense. At the conclusion of defendant's direct testimony at 4:55 p.m. and before recessing for the night, the trial court instructed the defendant not to talk with counsel "about anything" nor to discuss his testimony with anyone. Id. at 82, 96 S.Ct. at 1332, 47 L.Ed.2d at 596. Counsel timely objected but complied with the order. The United States Court of Appeals for the Fifth Circuit affirmed sub nom. United States v. Fink, 502 F.2d 1 (1974), finding that no prejudice to defendant had resulted from the order. The Supreme Court unanimously held that the order unconstitutionally impinged upon the defendant's right to the assistance of counsel and held that defendant need not show how the error prejudiced him. Thus, the Court reversed the lower court and remanded for a new trial.

In its analysis, the Court recognized the "important role the trial judge plays in the federal system of criminal justice." Id. 425 U.S. at 86, 96 S.Ct. at 1334, 47 L.Ed.2d at 598. "The judge's power to control the progress and ... the shape of the trial includes the broad power to sequester witnesses before, during, and after their testimony." Id. at 87, 96 S.Ct. at 1334, 47 L.Ed.2d at 598. Nevertheless, the Court emphasized that a defendant in a criminal prosecution is "not simply a witness .... A sequestration order affects a defendant in quite a different way from the way it affects a non-party witness who presumably has no stake in the outcome of the trial.... [A] defendant in a criminal case must often consult with his attorney during the trial." Id. at 88, 96 S.Ct. at 1335, 47 L.Ed.2d at 599. The Court observed that sequestration of a witness is used primarily to prevent that witness from being exposed to other witnesses' testimony. Since a criminal defendant has the constitutional right to be present during the entire trial, the most important reason for sequestering a witness is not applicable to a defendant. Id.

Noting that a defendant ordinarily is "ill-equipped to understand and deal with the trial process without a lawyer's guidance," id., the Court emphasized the importance of counsel's role at trial:

The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel.... [A defendant] is unfamiliar with the rules of evidence.... He lacks both the skill...