State v. Rodriguez

• Decision Date: 11 April 1995
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Efrain RODRIGUEZ, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 590

280 N.J.Super. 590

656 A.2d 53

STATE of New Jersey, Plaintiff-Respondent, v. Efrain RODRIGUEZ, Defendant-Appellant.

Superior Court of New Jersey,

Appellate Division.

Submitted March 21, 1995.

Decided April 11, 1995.

Susan L. Reisner, Public Defender, for appellant (Linda Mehling, Asst. Deputy Public Defender, of counsel and on the letter brief)

Deborah T. Poritz, Atty. Gen., for respondent (Gerard C. Sims, Jr., Deputy Atty. Gen., of counsel and on the brief).

Before Judges LANDAU, CONLEY and NEWMAN.

The opinion of the court was delivered by

CONLEY, J.A.D.

Defendant was indicted on two counts of fourth-degree theft, N.J.S.A. 2C:20-3. Pursuant to a plea bargain in which the State agreed not to seek incarceration, he admitted under oath to the theft. That plea was thereafter withdrawn. We are not told why. A second guilty plea was again offered, during which defendant under oath again admitted to the theft. The plea bargain was similar to the first but at the time of sentencing the trial judge rejected the offer in light of defendant's extensive prior record of which, apparently, the State was not aware at the time of either plea. Subsequently defendant was tried by a jury. After the State presented its case and the trial judge inquired as to whether defendant was going to testify, the following colloquy occurred:

[Defense counsel]: We're in a bit of a quandary here. One of the problems is that on 2 occasions, Mr. Rodriguez has tried to enter a plea of guilty in return for a probationary sentence. On each of those occasions, he was put under oath and indicated that he, in fact, committed the crime.

Now he's given the opportunity to be put under oath, and he indicates to me he wants to tell the truth, that he did not commit the crime. And I've advised him that such a circumstance, although he can't be cross-examined on what was said at the time of the pleas, at a later date, there's a potential for a perjury charge. And that seems to be complicating the situation.

I mean, they waved the carrot in front of him and said, "You don't have to go to ill [sic] gentleman. All you have to do is tell us that you committed the crime."

He went for the carrot, and they took it away.

And now he has a problem about testifying in this case.

Now, if we had some assurances that he wasn't going to be charged with perjury down the road, he would rush to the stand, I believe, but I'm not sure where we're going to go from here.

THE COURT: I'm not either.

[The Prosecutor]: I'm not going to make ... I'm not going to make any assurance as to perjury charges at all. I wouldn't do that. I don't think I'm capable of doing that.

Defendant did not testify. He was convicted of one count of fourth-degree theft and a custodial term of eighteen months was imposed along with the required Violent Crimes Compensation Board penalty and restitution of $310.

On appeal, defendant raises the following contentions:

POINT I

DEFENDANT WAS DENIED A FAIR TRIAL BECAUSE HE WAS EFFECTIVELY BARRED BY THE PROVISIONS OF N.J.R.E. 410 FROM TESTIFYING ON HIS OWN BEHALF. HIS CONVICTION THEREFORE SHOULD BE REVERSED AND THIS COURT SHOULD DIRECT THAT, IF HE TESTIFIES AT HIS NEW TRIAL, THE STATE WILL BE BARRED FROM PROSECUTING HIM FOR PERJURY OR FALSE SWEARING FOR ANY INCONSISTENCIES BETWEEN HIS TRIAL TESTIMONY AND HIS FACTUAL BASES AT HIS GUILTY PLEAS. ( U.S. CONST., AMENDS. V, VI, XIV; N.J. CONST. (1947), ART. I, PARAS. 1, 10).

A. N.J.R.E. 410 Effectively Barred Defendant From Exercising His Constitutional Right To Testify On His Own Behalf.

B. Since Defendant Was Not Advised When He Entered His Guilty Pleas That He Could Be Prosecuted For False Swearing Or Perjury, He Should Be Granted A New Trial At Which He Can Testify Without Fear Of Subsequent Prosecution.

C. Conclusion.

POINT II

OUTSIDE INFLUENCES INTRUDING UPON THE JURY'S DELIBERATIONS VIOLATED DEFENDANT'S RIGHT TO AN IMPARTIAL JURY UNDER THE UNITED STATES AND NEW JERSEY CONSTITUTIONS; ACCORDINGLY, DEFENDANT IS ENTITLED TO A NEW TRIAL. ( U.S. CONST., AMENDS. VI; XIV; N.J. CONST. (1947), ART. 1, PARA. 10) (NOT RAISED BELOW).

I.

Defendant contends in Point I that his statements in connection with his guilty pleas and the risk of a potential perjury prosecution arising from inconsistent trial testimony, see N.J.R.E. 410(2) ¹, impermissibly chilled his constitutional right to testify. We disagree. A defendant does not have a constitutional right to commit perjury. See Nix v. Whiteside, 475 U.S. 157, 173, 106 S.Ct. 988, 997, 89 L.Ed.2d 123 (1986) ("[w]hatever the scope of a constitutional right to testify, it is elementary that such a right does not extend to testifying falsely"); accord, United States v. Apfelbaum, 445 U.S. 115, 117, 100 S.Ct. 948, 950, 63 L.Ed.2d 250 (1980) ("proper invocation of the Fifth Amendment privilege against compulsory self-incrimination allows a witness to remain silent, but not to swear falsely...."); Harris v. New York, 401 U.S. 222, 225, 91 S.Ct. 643, 645, 28 L.Ed.2d 1 (1971) ("[e]very criminal defendant is privileged to testify in his own defense, or to refuse to do so. But that privilege cannot be construed to include the right to commit perjury.... Having voluntarily taken the stand, petitioner was under an obligation to speak truthfully...."); Walder v. United States, 347 U.S. 62, 65, 74 S.Ct. 354, 356, 98 L.Ed. 503 (1954) ("there is hardly justification for letting the defendant affirmatively resort to perjurious testimony in reliance on the Government's disability to challenge his credibility."). And see State v. Miller, 67 N.J. 229, 234, 337 A.2d 36 (1975) ("[t]he shield provided by Miranda cannot be perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances.") (quoting Harris v. New York, 401 U.S. 222, 226, 91 S.Ct. 643, 646, 28 L.Ed.2d 1, 5 (1971)).

We have recently recognized that there are circumstances pursuant to which the threat of a perjury prosecution may be such as to unconstitutionally impinge upon a defendant's rights. State v. Vassos, 237 N.J.Super. 585, 590-91, 568 A.2d 583 (App.Div.1990) (trial judge's interruption of key defense witness' testimony to warn him that his testimony could subject him to prosecution for perjury arising from inconsistent statements the witness had made in connection with his guilty plea for the same offense, and then striking his testimony when he refused to testify further, violated defendant's due process rights to a fair trial). And see Webb v. Texas, 409 U.S. 95, 93 S.Ct. 351, 34 L.Ed.2d 330 (1972) (trial judge's warnings to defendant's only witness of potential perjury prosecution "effectively drove [him] off the stand" and deprived defendant of his constitutional right to present his defense).

Defendant contends that a similar unconstitutional chill is effectuated by the prior plea bargains pursuant to which he admitted under oath his guilt but which were ultimately rejected by the trial judge causing him to proceed to trial. Because he was not assured that no perjury prosecution would be forthcoming should he testify differently at trial, he claims he was coerced into not testifying. That coercion or chill upon a free exercise of the right to testify, if indeed that was the cause of his decision, ² however, was not induced by the trial judge or the prosecutor. Nothing that occurred during trial imposed an unconstitutional chill upon defendant's right to testify.

In effect, defendant's contention here is that despite N.J.R.E. 410(2), statements made in connection with a plea should not be considered as a basis for a potential perjury trial in the event the plea is withdrawn or not accepted and contrary trial testimony is given, just as it cannot be used during the trial itself. We know of no constitutional basis for this contention. See State v. Bennett, 179 W.Va. 464, 370 S.E.2d 120 (1988) (trial judge's warning to defendant that his trial testimony, if contrary to statements made under oath in connection with a prior withdrawn plea, could form a basis for a perjury trial resulting in defendant's decision not to testify, did not constitute a denial of his Fifth Amendment or due process rights).

Unquestionably, considerations of fairness are implicated in the determination to preclude use of a guilty plea and statements made in connection therewith during a subsequent trial where the plea has been withdrawn or rejected. As the Supreme Court observed years ago "[t]he privilege of withdrawal is indeed a hollow one if evidence of the guilty plea can be used against the defendant in a subsequent trial. In our view, basic considerations of fairness require that when a defendant is permitted to withdraw his guilty plea, he must be returned to the same status that he occupied before the plea was entered. Anything less than this seriously undermines the policies behind allowing a withdrawal." State v. Boone, 66 N.J. 38, 45-46, 327 A.2d 661 (1974). The court's focus, however, was upon use of the plea during a trial on the particular offense to which the defendant had pled guilty. Thus, the court noted "[t]he problem with revealing a prior guilty plea to the jury is that it is too prejudicial, and it 'may induce the jury to become reckless in its consideration of the other evidence.' ... The privilege to withdraw such a plea is surely an empty one and becomes a trap if it may be used in evidence." Id. at 47, 327 A.2d 661.

Defendant has presented us no authority that such concerns are implicated in the risk he faced here of a potential perjury prosecution in the event his trial testimony was inconsistent with his plea statements. And see State v. DeCola, 33 N.J. 335, 354, 164 A.2d 729 (1960). There a witness had testified in a prior grand jury proceeding but refused to testify during a subsequent trial on the basis of her Fifth Amendment right not to incriminate herself because of a potential perjury trial arising from her grand...