State v. Pratts
| Decision Date | 27 October 1975 |
| Citation | 145 N.J.Super. 79,366 A.2d 1327 |
| Parties | STATE of New Jersey, Plaintiff-Respondent, v. Antonio PRATTS, Defendant-Appellant. |
| Court | New Jersey Superior Court — Appellate Division |
Edward J. Dimon, Asst. Deputy Public Defender, for defendant-appellant (Stanley C. Van Ness, Public Defender, attorney).
Solomon P. Rosengarten, Deputy Atty. Gen., for plaintiff-respondent (William F. Hyland Atty. Gen., attorney; William Welaj, Deputy Atty. Gen., of counsel and on the brief).
Before Judges ALLCORN, KOLE and E. GAULKIN.
The opinion of the court was delivered by
EDWARD GAULKIN, J.A.D. Ret., Temporarily Assigned on Recall.
Defendant was convicted by a jury of robbery (count 1), robbery while armed (count 2), and the unlawful possession of a pistol without the requisite permit, in violation of N.J.S.A. 2A:151--41(a) (count 3). On February 25, 1974 the trial judge sentenced defendant to consecutive sentences in State Prison, 2 to 3 years on count 1, 1 to 2 years on count 2, and 1 to 2 years on count 3, totaling 4 to 7 years, all consecutive to a sentence which defendant was to serve on an unrelated conviction. Defendant's counsel argued that count 3, the unlicensed pistol charge, merged in count 2 and therefore a separate sentence upon count 3 was without basis. After considering the matter, the judge, on February 28, 1974, vacated all three sentences and sentenced defendant anew. This time he reimposed the sentence of 2 to 3 years on count 1, but increased the sentence on count 2 to 2 to 4 years, again consecutive as before and consecutive to the sentence being served. Although he did not squarely so hold, he seemed to rule that there was no merger of counts 2 and 3; nevertheless, he said he would impose no sentence upon count 3.
Defendant's first ground of appeal is that the judge erred 'when it did not permit the defendant to call a witness in his behalf.' To investigate the validity of this ground of appeal we must determine (1) whether defendant did ask that he be permitted to call a witness and (2) if he did, was the judge obliged to permit him to do so. We find that defendant did not ask that he be permitted to call a witness; what he asked was that the judge direct the prosecutor or his own attorney to do so, and we hold that the judge properly refused the request.
The witness in question was one Jose Perez, also known as Carabello. He was named in the indictment as a codefendant with Pratts, but apparently had pleaded guilty. Pratts was tried alone.
After the State had rested, Mr. Jacobs, defense counsel, asked for and was granted a recess to interview Carabello and to consult with defendant as to whether Carabello should be called and whether defendant himself would testify. Jacobs' strategy up to that point was to resist, attack and cast doubt upon the evidence offered by the State to identify defendant as one of the two robbers, and to create doubt in the minds of the jury that defendant was a participant in the robbery; and the record shows that he did it very effectively. (A previous trial on the same indictment resulted in a hung jury.)
Jacobs had interviewed Carabello, who was in custody, and had intended to call him as a witness. However, he told the judge that the prosecutor
* * * got a statement from him that killed him as my witness. I haven't had a chance to go over there and talk to him and the defendant may not be taking the stand. * * * I have to go to my client and talk about this case before I can decide whether to put him on the stand. * * * I can't tell * * * (defendant) to take the stand until I talk to this other witness. * * *
The judge replied that he would have Carabello brought over
The jury was then excused and, since the State had rested, the judge asked whether counsel proposed to make any motions. Jacobs replied 'There is a motion' but The judge replied, 'I don't want to take too much time with delay,' and agreed to 'hold the motion until tomorrow' so that the taking of testimony could be concluded that day.
Jacobs then interviewed Carabello and conferred with Pratts. He then reported to the judge that 'We are not going to present any testimony,' and that defendant rested.
There followed a discussion between counsel and with the judge about the admission and the editing of certain writings referred to during the trial. The judge said he would rule on those matters the next day. Then, this followed:
MR. FORMAN (Prosecutor): It is my understanding the defense rested, your Honor.
The judge then recalled the jury and said:
Ladies and gentlemen, we are going to recess until tomorrow morning to resume at 9 o'clock. The matter of testimony has just been concluded. There will be no additional testimony offered by either the State or the defense and therefore we intend to and expect to start tomorrow morning with summations and charge of the court.
The following morning Jacobs reported to the judge that he was having a disagreement with his client and he 'asked * * * to be permitted to state something on the record.' The judge having given his permission, and the prosecutor having left the courtroom, counsel told the judge that Pratts wanted Carabello called as a witness but that he believed he should not be called because
* * * I spoke to him in the County Jail yesterday and the day before. When I spoke to him the day before, which would have been Tuesday, he indicated to me that he intended to give a statement in court which would exculpate or tend to exculpate Mr. Pratts. At that time I told him I would call him as a witness. The following morning I advised (the prosecutor) that the witness was there and he was about to give an exculpatory statement. At that point they sent somebody to the jail and he returned from the jail with a statement from this person. I just had it and I gave it to my client to read. I don't know where its whereabouts is now, but the statement says that Carabello, a person by the name of Juan and my client, went to Tony Marts to pull a job. That my client waited downstairs and that the other two pulled the job and they took off separately, left separately. After reading that, I, of course, became concerned. I sent one of the public defender's investigators in to take another statement, a statement of our own from the same person. Carabello gave me that statement during trial. I read that statement and that statement has certain curious elements to it which left me in doubt as to what the story was. * * * I had your Honor's permission to go over to the jail and speak to this person. * * * I went to the jail. I went directly upstairs. I spoke to the man for five or ten minutes. I confronted him with both statements.
In my opinion the man would be a very bad witness and would give no exculpatory information. His testimony would be more damaging than it would be beneficial to my case. I therefore decided not to call him. I then returned and explained that to Mr. Pratts and gave him the further advice that under the circumstances he should not testify. * * * In my opinion Carabello should not be called as a witness. Pratts should not testify. I gave Mr. Pratts that advice yesterday. I gave it to him in the presence of his wife and his mother. I asked him to think it over and I advised him rather strongly, I will admit, not to testify for a number of reasons, which I don't feel I have to go into now.
Apparently, it was after this conference that counsel and defendant agreed, the day before, not to put in any more testimony and to rest.
Mr. Jacobs continued:
Mr. Pratts has returned to court today. He is upset, apparently, with my representation, as he has been, through most of the trial. He feels now that Carabello ought to be called as a witness. I told Mr. Pratts I will defer to his wishes, but I want to state for the record at this time calling Carabello as a witness and framework (sic) or admitting that statement by consent, that statement being the prosecutor's statement would be a grave error.
At this point if Mr. Pratts wants to express his wishes to the court * * *.
Then followed a lengthy discussion of which these are the pertinent parts:
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