State v. Gallicchio
| Decision Date | 24 May 1965 |
| Docket Number | No. A--92,A--92 |
| Citation | 210 A.2d 409,44 N.J. 540 |
| Parties | The STATE of New Jersey, Plaintiff-Respondent, v. Jerry GALLICCHIO, Jr., Defendant-Appellant. |
| Court | New Jersey Supreme Court |
Waldron Kraemer, Newark, for appellant.
John G. Graham, Asst. Pros. of Essex County, for respondent, Brendan T. Byrne, Pros. of Essex County, attorney.
The opinion of the court was delivered by
Defendant, Jerry Gallicchio, Jr., indicted and tried for murder, was found guilty of manslaughter. His direct appeal to this Court followed. R.R. 1:2--1(c).
At approximately 10:00--10:30 P.M., October 7, 1962, Jeffrey Alas, Richard Nayduch, and three others returned to Newark after an automobile trip of New York. Nayduch, desirous of repaying a $15 debt to defendant, had his companions stop at Gallicchio's home. While Nayduch went inside, the others waited in the car.
Gallicchio was home alone. Nayduch entered Gallicchio's apartment, which was on the first floor, and remained inside for about 20 minutes. As he was about to leave, Alas, who had decided to go inside, rang the bell. At this point Gallicchio told Nayduch to tell Alas and the others to stay away Nayduch left the apartment and went down the hall to the front door where he met Alas and gave Alas defendant's message. Alas disregarded defendant's order and entered Gallicchio's apartment. Nayduch followed him in. Gallicchio and Alas had an argument and a fight followed.
Gallicchio testified that Alas came at him with a knife, he pulled Alas' wrist and arm and both of them fell to the floor. After struggling for a couple of minutes he was able to free himself. Thereupon Alas got up, with knife in hand and blood on his body and said: 'I will get you for this' and walked out. After Alas departed, Nayduch helped Gallicchio clean the blood-spattered apartment.
The other three occupants of the car saw Alas make his way out of the apartment house and stumble into the car. They took him to Martland Medical Center.
On October 11, 1962 Gallicchio was arrested and charged with assault and battery. While at police headquarters, he was interrogated as to the reason for the knifing. He stated 'What would you do if somebody was fooling around with your wife?'
Alas died on October 12, 1962 as a result of hemorrhaging due to a wound from a knife which entered the upper right side of the abdomen, directed downward and backward from right to left to a depth of five inches, perforating the left lobe of the liver. There were three other knife wounds. Both his right and left arms were cut and he sustained a wound one and one-half inches deep in the back of the left chest.
The charge against Gallicchio was thereafter changed to murder.
Defendant contends that thet trial court improperly permitted the use of neutralization. By neutralization is meant the erasure or cancellation of unexpected harmful testimony by a showing--either by cross-examination or by other witnesses--that the witness has made a statement in conflict with his present testimony. Where a party calls a witness who, to the surprise of the proponent, testifies in conflict with a previous statement, and to the harm of the proponent's case, the proponent is permitted to utilize the previous statement 'to neutralize' the witness's harmful testimony. State v. Cooper, 10 N.J. 532, 92 A.2d 786 (1952); State v. Caccavale, 58 N.J.Super. 560, 157 A.2d 21 (App.Div.1959); State v. Baechlor, 52 N.J.Super. 378, 145 A.2d 631 (App.Div.1958) This has been the settled rule since State v. D'Adame, 84 N.J.L. 386, 395, 86 A. 414, 417 (E. & A. 1913), where the court stated:
'The state, having been thus surprised into offering evidence, the effect of which was exactly contrary to what it was endeavoring to prove, viz., the guilt of the defendant, had the right, if it could do so, to neutralize the effect of such evidence by proving (prior) self-contradictory statements of the witness * * *.'
Herein when the State called Nayduch on direct examination he testified that when the argument between Gallicchio and Alas started, Alas punched Gallicchio in the face. Nayduch joined in, on the side of Alas. Gallicchio thereupon pushed Alas to the floor and was defending himself against Nayduch. At that point Nayduch saw Alas going toward defendant with a knife and yelled He saw Gallicchio turn around and then Gallicchio pushed him to the floor rendering him unconscious. When Nayduch regained consciousness, he did not see Alas in the apartment.
The State claimed surprise and asserted that it had a prior inconsistent statement by Nayduch. The trial court, believing the State's claim of surprise, thereupon permitted the prosecutor to use the witness's prior statement in order to contradict, and thereby neutralize, the trial testimony that Alas held the knife. In his prior statement Nayduch said: 'Jerry (Gallicchio) grabbed him again and then I saw Jerry with the knife in his hand and I saw Jerry's hand with a knife in it going toward Jeff's (Alas') body.' Neutralization was again permitted when Nayduch upon further examination by the State testified in reference to the knife. In substance the prior contradictory statement stated that Alas was not in possession of a knife but that defendant was.
There is no doubt that the State was in possession of a prior conflicting statement of the witness, that it had no prior indication of Nayduch's present disposition and that it was therefore surprised by this testimony. It is also clear that Nayduch's testimony that Alas held the knife and was advancing toward defendant was harmful to the State's case i.e., it was injurious to the proponent's case.
The authorities warn that the proponent cannot claim harm if the present testimony is only contrary to that which the proponent expected or was attempting to elicit or that the witness failed to render the expected assistance in the prosecution of a defendant. The witness must give testimony asserting the existence or non-existence of a material fact contrary to the proponent's case. State v. Perillo, 18 N.J.Super. 549, 87 A.2d 727 (App.Div.1952); Ciardella v. Parker, 10 N.J.Super. 537, 77 A.2d 496 (App.Div.1950). See McCormick, Evidence, c. 5, sec. 38, p. 78 (1954). 1 The State's theory was that Gallicchio was the armed aggressor. Based upon his prior statement the State expected Nayduch so to testify. By placing the knife in Alas' hand with Gallicchio merely trying to defend himself, Nayduch asserted facts in direct conflict therewith, thus adversely affecting the State's case.
We therefore hold that the trial court's ruling was correct.
Defendant also contends that the trial court charged insufficiently on the use of the prior contradictory statements in that the jury should have been instructed as to the purpose of the neutralizing procedure at the time it was utilized.
In its charge the trial court instructed the jury that the contradictory statements were used not to prove the facts which they assert but merely to wipe the slate clean. On three different occasions during the course of the neutralization of Nayduch's testimony, the same instruction, in substance, was made in front of the jury in answer to defendant's counsel's suggestions. We feel that the jury was well informed as to the nature and effect of the neutralizing process and that no prejudicial error resulted.
The authorities are not clear as to the exact steps to be taken when a proponent does not know prior to calling the witness that his trial testimony will contradict his prior statement. State v. Guido, 40 N.J. 191, 200, 191 A.2d 45 (1963), sets forth the procedure to be used wheh a proponent, prior to trial, has been advised that a witness will not adhere to a prior statement, but feels the disavowal should be tested under oath. He should so inform the trial court at side bar. The witness should be examined in the absence of the jury and then so much of...
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...surprise. Evid.R. 63(1)(a). The State must also show that the testimony was adverse or contrary to its case. See State v. Gallicchio, 44 N.J. 540, 546, 210 A.2d 409 (1965). If the State had no prior indication that the witness would contradict the prior statements, a preliminary hearings sh......
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