State v. Obstein

• Decision Date: 21 October 1968
• Docket Number: No. M--386,M--386
• Citation: 52 N.J. 516,247 A.2d 5
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Daniel OBSTEIN, Defendant-Appellant.
• Court: New Jersey Supreme Court

Page 516

52 N.J. 516

247 A.2d 5

STATE of New Jersey, Plaintiff-Respondent, v. Daniel OBSTEIN, Defendant-Appellant.

No. M--386.

Supreme Court of New Jersey.

Oct. 21, 1968.

David Samson, Newark, for defendant-appellant (David Samson, Newark, on the brief, Cummis, Kent & Radin, Newark, attorneys).

Guy W. Calissi, Prosecutor of Bergen County, for plaintiff-respondent.

The opinion of the court was delivered by

FRANCIS, J.

On Friday, July 12, 1968, defendant Daniel Obstein was arrested and charged with the murder of Robert Yakubic on May 28, 1968 in Lyndhurst, N.J. He obtained counsel, was arraigned in the appropriate court, and a preliminary hearing was scheduled for Wednesday, July 17. R.R. 3:2--3. Defense counsel then applied for bail and the county court conducted a hearing thereon, In camera, on Monday, July 15. At the hearing, in addition to opposing bail, the prosecutor sought an order requiring defendant to submit to a psychiatric examination. In support of his opposition to bail the prosecutor submitted to the court an affidavit of a witness setting forth vital, relevant factual allegations concerning the nature of the homicide and defendant's participation in it. Relying on the facts so alleged, he contended defendant was not entitled to bail. Defendant offered no evidence in support of the bail application. In addition, he objected to the granting of the State's request for a psychiatric examination. After argument, the trial court denied bail and also ruled that defendant should submit to examination by the State's psychiatrists. The order for examination, dated July 15, authorized the doctors to examine 'by conversation' with Obstein. On July 16, the day before the scheduled preliminary hearing, the Grand Jury indicted Obstein for murder. The indictment was in the usual short form. R.R. 3:4--3(b).

Defendant moved for leave to appeal from both rulings, and in view of the nature of the case, we set the matter down for oral argument as if the motion had been granted.

I. The Bail Application

This Court had occasion a few years ago to deal with the issue of the right of a person under indictment for murder to be released on bail pending trial. State v. Konigsberg, 33 N.J. 367, 164 A.2d 740, 89 A.L.R.2d 345 (1960). There we said the constitutional authorization to deny bail in murder cases where the proof is evident or the presumption great is satisfied, and that bail should be denied when upon analysis, the circumstances shown on the application disclose a fair likelihood that the defendant is in danger of a first degree murder verdict. 33 N.J. at pp. 374--377, 164 A.2d 740; N.J.Const.1947, Art. I, par. 11; Note, 7 Vill.L.Rev. 438 (1962). The requisite danger exists when the trial court concludes that the circumstances, if believed by a jury, could reasonably support a finding of that degree of murder. Commonwealth ex rel. Alberti v. Boyle, 412 Pa. 398, 195 A.2d 97 (Sup.Ct.1963). Our reference to first degree murder as distinguished from the death penalty is deliberate. The rule does not require a specific holding that the danger is of the death penalty. No such forecast is required of the trial judge, primarily because decision on that penalty is ordinarily for the jury upon and after a consideration of all the evidence introduced at the formal trial. N.J.S. 2A:113--4, N.J.S.A.

While we said in Konigsberg that the burden of showing a fair likelihood that the defendant is in danger of a first degree murder verdict rests upon the State, we repeat a caution expressed in the opinion. On a bail hearing, guilt or innocence of the accused is not the issue. There can be no evaluation of the evidence with that result in mind. Direct conflicts between inculpatory or exculpatory facts cannot be resolved. Problems of credibility of witnesses, except, perhaps, in extraordinary circumstances, should not be passed upon. Such matters must await jury determination at the trial. 33 N.J. at p. 377, 164 A.2d 740.

The nature of the bail hearing seems to require some elaboration beyond that set down in Konigsberg. Conduct of the proceedings In camera in the absence of objection by the accused is approved. Care must be taken to safeguard him against possible prejudice at his later plenary trial through public revelation or reporting in the press or other media of the obviously incomplete but necessarily incriminating evidence. Naturally a stenographic record will be made and preserved for later inspection by authorized persons at appropriate times.

The prosecutor may present the proof in affidavit form on which he bases his opposition to the release of the accused on bail. But Ex parte affidavits cannot be used over the defendant's objection. Commonwealth ex rel. Alberti v. Boyle, supra; Young v. Russell, 332 S.W.2d 629 (Ky.Ct.App.1960). Consultation between counsel should settle the problem before the hearing. If agreement is reached to submit affidavits, defendant is entitled to copies sufficiently in advance to enable him to prepare counter-proofs, either by way of affidavits or live witnesses. If defendant declines to proceed by affidavits, the prosecutor must produce the witnesses on whom he relies to meet the test for denial of bail. The same may be said of the testimony adduced before the Grand Jury, if the prosecutor wishes to rely on it at the hearing. If defendant objects because he had no opportunity for cross-examination, the transcript will not suffice. It should be added that the trial judge in his discretion may disregard the consent of counsel and may refuse to proceed in any of these more summary fashions. In this event, of course, the necessary witnesses must be brought in and the normal hearing procedure followed.

The bail hearing before the trial court is not a unilateral one. That is, the prosecutor cannot limit the testimony to his direct examination of the State's witnesses. The defendant has the right of cross-examination. In this connection it must be remembered that the proceeding is not a wide-ranging one for discovery, nor for exploration or determination of guilt or innocence. The prosecutor, however, cannot prevent the accused from producing witnesses to introduce facts pertinent to the inquiry. But the narrow and focal issue must be kept in mind by the trial court and the hearing tailored to that issue, I.e., whether the facts adduced by the State, notwithstanding contradiction of them by defense proof, warrant the conclusion that if believed by a jury they furnish a reasonable basis for a verdict of first degree murder. See, State v. Konigsberg, supra, 33 N.J. at pp. 377--379, 164 A.2d 740; Commonwealth ex rel. Alberti v. Boyle, supra; Commonwealth v. Stahl, 237 Ky. 388, 35 S.W.2d 563 (Ct.App.1931); Ex parte Ray, 86 Tex.Cr.R. 582, 218 S.W. 504 (Ct.Cr.App.1920); Annotation, 89 A.L.R.2d 355 (1963).

As previously noted, at the bail hearing in this case the prosecutor handed to the trial court the affidavit of a principal witness against defendant. At first, no copy was given to defendant nor was his counsel allowed to see it. Obviously this course was improper. How could a defendant be prepared to argue that the evidence against him was not evident nor the presumption great if he was not permitted to know what facts were set forth in the affidavit? Defendant did object to consideration of this Ex parte affidavit, and he requested that the witness be produced for cross-examination. The court declined to order production of the witness. Some further argument resulted in delivery of a copy of the affidavit to defense counsel. After reading it, defendant renewed his request for production of the affiant for cross-examination, but the court said that since guilt or innocence was not the issue, the inquiry should be limited to a decision whether the facts as set out in the affidavit were sufficient to indicate a fair likelihood that defendant was in danger of a jury verdict of first degree murder. As we have indicated above, the rule of Konigsberg was not intended to be so constricted.

Obviously no rule of precise mathematical dimensions can be devised to govern All applications for bail. Each case must stand on its own facts, as presented by the State and by the defense, not for the purpose of obtaining a decision on the ultimate issue of guilt or innocence, but simply to enable the trial court to apply the Konigsberg test. That test administered by trial courts with restraint commensurate with its purpose will prevent excursions beyond its boundaries. From a practical standpoint it is unlikely that the State will offer more than a highlight of its inculpatory case against the defendant, or that the defense, except in rare instances, will expose much of its own case. For example, in this instance defense counsel was informed after examining the State's affidavit that he could file counter-affidavits if he wished. He did not take advantage of the opportunity. In addition, although counsel indicated a desire to call the defendant as a witness and was granted this permission, he finally decided not to do so. It seems unlikely that bail applications in murder cases will impose an undue burden upon trial judges or prosecutors. But the time necessarily diverted to that end must be accepted as an incident of an accused's constitutional right to bail in such cases unless the proof against him is evident or the presumption great. State v. Konigsberg, supra, 33 N.J. at p. 378, 164 A.2d 740.

There can be no doubt that the facts set forth in the affidavit submitted to the trial court are highly incriminating. Nevertheless, since the affidavit was Ex parte, it did not suffice as testimony at the hearing when defendant objected and requested the production of the affiant and the right to cross-examine her. In our judgment it was error to refuse the request. For that reason the order denying bail is reversed and the matter is remanded to the trial court to permit the direct and...