State v. Moffa

• Decision Date: 05 December 1961
• Docket Number: No. A--20,A--20
• Citation: 176 A.2d 1,36 N.J. 219
• Parties: STATE of New Jersey, Plaintiff-Appellant, v. John MOFFA, Defendant-Respondent.
• Court: New Jersey Supreme Court

Page 219

36 N.J. 219

176 A.2d 1

STATE of New Jersey, Plaintiff-Appellant, v. John MOFFA, Defendant-Respondent.

No. A--20.

Supreme Court of New Jersey.

Argued Oct. 9, 1961.

Decided Dec. 5, 1961.

Norman Heine, Camden County Pros., Camden, for appellant (Stephen M. Gretzkowski, Jr., Asst. Pros., Camden, on the brief).

Joseph Tomaselli, Camden, for respondent (Malandra & Tomaselli, Camden, attorneys).

The opinion of the court was delivered by

WEINTRAUB, C.J.

Defendant Moffa was indicted for suborning Butler Blevins to testify falsely before a Camden County grand jury in violation of N.J.S. 2A:85--14, N.J.S.A. (aiding and abetting) and N.J.S. 2A:131--4, N.J.S.A. (false swearing). The indictment quotes the portion of the testimony of Blevins alleged to be false. Moffa sought pretrial inspection of (1) the balance of Blevins' testimony and (2) statements given by Blevins to the prosecutor. The trial court granted the first request and denied the second. 64 N.J.Super. 69 (Cty.Ct.1960). The State obtained leave to appeal and we certified the case while it was pending before the Appellate Division.

R.R. 3:5--11 provides:

'Upon motion of a defendant made at any time after the filing of the indictment or accusation, the court shall order the prosecutor to permit the defendant to inspect and copy or photograph designated books, tangible objects, papers or documents other than written statements or confessions made by the defendant obtained from or belonging to the defendant and may, if the interests of justice so require, order the prosecutor to permit the defendant to inspect and copy or photograph written statements or confessions made by the defendant and designated books, tangible objects, papers or documents obtained from others except written statements or confessions.'

In State v. Johnson, 28 N.J. 133, 145 A.2d 313 (1958), we held this rule bars pretrial inspection of statements obtained by the prosecution from a witness. The State contends the grand jury testimony of Blevins is a statement of a witness within the rule. We cannot agree. The testimony of Blevins contains his alleged criminal act, and what Moffa seeks is, figuratively, a view of the scene of the crime.

To maintain its case against Moffa, the State must prove not only that he asked Blevins to swear falsely but also that Blevins did in fact do so. That the commission of the crime by the person suborned must be shown was assumed without discussion in State v. Taylor, 5 N.J. 474, 76 A.2d 14 (1950), State v. Caporale, 16 N.J. 373, 108 A.2d 841 (1954), and State v. Scott, 12 N.J.Misc. 278, 171 A. 311 (Sup.Ct.1934), and is supported by uniform authority elsewhere. 3 Wharton, Criminal Law and Procedure (Anderson 1957) § 1321, at pp. 687--88; 41 Am.Jur., Perjury § 74, at p. 41 (1942); 70 C.J.S. Perjury § 79, at p. 549 (1951).

Thus Moffa stands in the shoes of Blevins with respect to so much of the indictment as alleges that Blevins swore falsely. If Blevins were the defendant, his right to pretrial inspection of his testimony would be clear. In Johnson we held a defendant should have pretrial inspection of his confession if he needs it to prepare for trial, unless the State shows such disclosure will hamper the prosecution. There is even more reason to grant an accused access to the testimony in which he allegedly committed a crime, to the end that his counsel may see whether the criminal event did occur in the light of everything he said. So one charged with perjury before a grand jury has been granted pretrial inspection of his testimony. United States v. Rose, 215 F.2d 617, 629 (3 Cir.1954); United States v. Remington, 191 F.2d 246, 250 (2 Cir.1951), certiorari denied, 343 U.S. 907, 72 S.Ct. 580, 96 L.Ed. 1325 (1952); United States v. White, 104 F.Supp. 120 (D.N.J.1952). Still more evident is the need of the alleged suborner since of course he was not present when that offense was allegedly committed. He can hardly know what factual or legal issues an inspection may reveal until he has had it.

A defendant cannot be confined to so much of the scene as the State believes to be relevant. And if there is no outweighing cause, he should have the view before trial, the better to prepare for that event. State v. Murphy, 36 N.J. 172, 175 A.2d 622 (1961). In State v. Winne, 27 N.J.Super. 120, 123, 98 A.2d 898 (Cty.Ct.1953), affirmed, 27 N.J.Super. 304, 309, 99 A.2d 368 (App.Div.1953), a former prosecutor, charged with nonfeasance, was permitted to examine the files of his former office. In State v. Bunk, 63 A.2d 842 (N.J.Cty.Ct.1949), pretrial inspection was ordered of the weapons and the fatal bullets, as well as of institutional records of mental examinations of a defendant made prior to the crime. So also we held it within the inherent power of a court to order a pretrial psychiatric examination of a pivotal witness for the State where there was reason to question his capacity. State v. Butler, 27 N.J. 560, 600--01, 143 A.2d 530 (1958).

Here there is ample reason for pretrial inspection and none to deny it. The State stresses the policy in favor of the secrecy of grand jury proceedings. R.R. 3:3--7. If this policy barred disclosure before trial, it would bar it as well at the trial itself. Nothing suggests the invasion would be less at one time than at the other. Hence the question is whether the policy in favor of secrecy outweighs the demand that guilt be adjudged upon the whole truth.

If a policy issue was involved, it was resolved when the prosecution was started. The State thereby lifted the veil. It may not limit the trial to a glimpse of what happened; everything relevant must be revealed.

It has long been our rule that proceedings before a grand jury may be disclosed if justice so requires. Thus a witness may be queried as to whether his present testimony accords with his testimony before the grand jury. State v. Bovino, 89 N.J.L. 586, 588, 99 A. 313 (E. & A. 1916); State v. Silverman, 100 N.J.L. 249, 252, 126 A. 618 (Sup.Ct.1924); State v. Goldman, 14 N.J.Misc. 463, 465, 185 A. 505 (Sup.Ct.1936). In State v. Samurine, 47 N.J.Super. 172, 178, 135 A.2d 574 (App.Div.1957), reversed on other grounds, 27 N.J. 322, 142 A.2d 612 (1958), it was stated the defense is entitled at trial to have the grand jury testimony of witnesses, for the purpose of cross-examination. We so held where it appeared the witnesses had examined their testimony before taking the stand. State v. Mucci, 25 N.J. 423, 136 A.2d 761 (1957). We ordered full exploration of grand jury minutes when a presentment reprobated a public official. In re Presentment by Camden County Grand Jury, 34 N.J. 378, 401, 169 A.2d 465 (1961); R.R. 3:3--9(c). See also State v. Donovan, 129 N.J.L. 478, 30 A.2d 421 (Sup.Ct.1943). The situation before us fits easily within the doctrine of those decisions.

We are referred to Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 79 S.Ct. 1237, 3 L.Ed.2d 1323 (1959). That case involved a call at trial for the grand jury testimony of government witnesses for use on cross-examination. All members of the court agreed that in principle the testimony could be had, but divided 5 to 4 upon whether the required showing was there made. The majority failed to find a 'particularized need,' while the dissenters thought it was evident. Our decision in Mucci accords with the theme of the dissenting view. But, as to the present case, it cannot be said the majority opinion in Pittsburgh Plate Glass supports the State. Here the State itself broke the seal when it charged false swearing before the grand jury. As to this situation, the dissenting opinion in Pittsburgh Plate Glass cited with approval United States v. Rose, supra (215 F.2d 617), and United States v. Remington, supra (191 F.2d 246), in which defendants charged with perjury before a grand jury were granted pretrial inspection of their testimony. The majority opinion made no reference to those decisions, probably for the reason that they are compatible with its thesis. If the prosecution uses part of the grand jury testimony of a witness, the 'particularized need' of the defendant to see if any thing else bears upon what is used would seem clear enough.

It is suggested that to reveal all of the testimony of Blevins would enable defendant to 'tamper' with him and that the policy of secrecy with respect to grand jury proceedings was designed to guard against that possibility. Actually there is no special connection between the subjects; the possibility of tampering is the same whether the witness made his statement before a grand jury or elsewhere.

If by 'tamper' one means 'intimidate' or worse, the answer is that Blevins' identity has already been revealed. If 'tamper' means that defendant might induce Blevins to change the portion of his testimony charged in the indictment to be false, that much of his testimony has already been disclosed in the indictment. Finally, if it is meant that Blevins might be persuaded falsely to explain away something in the balance of his testimony, that possibility is too conjectural to outweigh the need for a fair opportunity to investigate whether the criminal event did occur in fact and in law. This objection is much the one we held insufficient in Johnson when advanced to defeat pretrial inspection by a defendant of his own statement. Indeed, in that context, the possibility was greater since of course it would be easier for a defendant to 'tamper,' in the sense just stated, with his own testimony than to enlist the connivance of another. We should not bar a pretrial investigation of the criminal event itself because of a speculative fear that the fact-finding process will be overwhelmed by criminal activity.

We add the State does not assert that Blevins' testimony included matters unrelated to the alleged false swearing. If his testimony did, the court of course could exscind upon the State's request whatever is clearly irrelevant to the offense charged....