State v. Smith

• Decision Date: 19 April 1968
• Docket Number: No. A--1021,A--1021
• Citation: 100 N.J.Super. 420,242 A.2d 49
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Stanley SMITH, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 420

100 N.J.Super. 420

242 A.2d 49

STATE of New Jersey, Plaintiff-Respondent, v. Stanley SMITH, Defendant-Appellant.

No. A--1021.

Superior Court of New Jersey

Appellate Division.

Argued Nov. 20, 1967.

Decided April 19, 1968.

Harry A. Goldenberg, Atlantic City, for appellant (H. Albert Hyett, Atlantic City, on the brief).

Solomon Forman, Asst. Prosecutor, for respondent (Ernest H. Curtis, Asst. Prosecutor, on the brief, Robert N. McAllister, Jr., County Prosecutor, attorney).

Before Judges CONFORD, COLLESTER ane LABRECQUE.

The opinion of the court was delivered by

COLLESTER, J.A.D.

Defendant appeals from his conviction by a jury finding him guilty of the crimes of atrocious assault and battery (N.J.S. 2A:90--1, N.J.S.A.) and assault with a dangerous weapon (N.J.S. 2A:90--3, N.J.S.A.).

The incident which brought about defendant's arrest and subsequent conviction arose from an altercation between defendant and one Eddie Still. Cleveland Rooks, the victim, was the only witness called by the State who could describe what had transpired. Rooks testified that on the morning of December 19, 1965 he had breakfast in an Atlantic City restaurant with his father, brother and Eddie Still. While they were in the restaurant Still became involved in an argument with the defendant and slapped his face. Still and defendant then went outside and engaged in 'body punching.' When they returned to the restaurant the argument continued until defendant finally left. When Rooks subsequently went outside of the restaurant he saw Still hiding behind a parked car and defendant standing nearby holding a rifle which was pointed towards the ground. He heard defendant ask Still why he had slapped him in the face. Rooks, who was behind defendant, grabbed him and tried to take the rifle away. During the scuffle for possession the rifle was discharged and Rooks sustained a bullet wound in his shoulder. Rooks testified that he had had no prior trouble with defendant and had not been threatened by him.

Defendant does not contend that the verdict of the jury was contrary to the weight of the evidence. He urges two grounds for reversal, namely (1) the court erred in refusing to charge the jury that his failure to testify did not create any presumption of guilt, and (2) the court committed plain error by indirectly referring in its charge to defendant's failure to testify.

I

The request to charge submitted by defendant which the court refused to charge on the ground that it was improper was as follows:

'The defendant has a constitutional right not to testify if he so desires and the fact that he has not taken the witness stand (and) has exercised his constitutional right to refuse to testify as a witness in this case does not create any presumption against him. That is, the failure of the defendant Stanley Smith to take the stand and testify on his own behalf creates no presumption of guilt against him and you are not to draw any inference whatsoever that the accused is guilty merely by reason of the fact that he has failed to testify as a witness in his own behalf.'

Defendant alleges that the court's refusal to so instruct the jury constituted prejudicial error requiring a reversal of the convictions. He contends that since the United States Supreme Court held in Griffin v. State of California 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), that the guaranty against self-incrimination of the Fifth Amendment, made applicable to state prosecutions under the Fourteenth Amendment, forbids comment by the prosecution or instructions by the court that a defendant's failure to testify is evidence of guilt, he was entitled to an affirmative charge that the jury should indulge in no adverse presumption or inference from his failure to testify in his own behalf. He alleges that unless the jury was so instructed it would, of necessity, infer guilt from his failure to take the stand.

The precise question of whether a defendant in a state prosecution is entitled to have the jury so instructed when he requests it has not previously been dealt with by the United States Supreme Court or determined by any of the appellate courts of our State.

In Griffin the court expressly reserved decision on the question of whether the accused could require that the jury be instructed that his silence must be disregarded. 380 U.S. at p. 616, fn. 6, 85 S.Ct. 1229. Since that decision courts in Ohio and Nevada have held that Griffin does not require that comparable cautionary instructions be given when requested. See State v. Senzarino, Ohio Com.Pl., 224 N.E.2d 389, 390 Ohio Op.2d 383 (C.P.1967), and McNeeley v. State, 81 Nev. 663, 409 P.2d 135 (Sup.Ct.1965). Iowa has indicated a contrary view. State v. Osborne, 258 Iowa 390, 139 N.W.2d 177, 179 (Sup.Ct.1965).

In our State the Supreme Court has held in State v. Aviles, 49 N.J. 192, 229 A.2d 514 (1967), that when defendant did not request such a charge it was not plain error for the trial court not to give it, Sua sponte. However, dictum in State v. De Stasio, 49 N.J. 247, 252, 229 A.2d 636 (1967), inferentially suggests that when a request for a cautionary instruction is made it should be given to the jury.

In Bruno v. United States, 308 U.S. 287, 60 S.Ct. 198, 84 L.Ed. 257 (1939), the court held that a defendant in a federal prosecution had an indefeasible right to have the jury instructed that his failure to testify did not create any presumption against him. The court's decision was grounded upon a federal statute enacted in 1878, 28 U.S.C.A. § 632 (now 18 U.S.C.A. § 3481), which freed an accused in a federal court from his common law disability as a witness and also provided that the failure of an accused to exercise his right to testify 'shall not create any presumption against him.'

While the Bruno decision was based on the statutory mandate that no adverse presumption could be drawn from a defendant's failure to testify, it seems clear that the statute created no new right on behalf of an accused (other than his right to testify) and that it was merely declarative of an accused's privilege against self-incrimination guaranteed under the Fifth Amendment. It seems to us that the rationale of the Bruno decision is equally pertinent to state criminal prosecutions now that the Fifth Amendment guaranty against self-incrimination has been held applicable thereto.

Moreover, the underlying principle of Griffin v. California, supra, as we see it, is that no adverse inferences should be drawn by a jury when a defendant exercises his constitutional right not to testify. The value of the constitutional privilege to remain silent would be largely destroyed if a defendant could be penalized for relying upon it. Accordingly, the logical extension of this principle is that when a defendant requests that the jury be instructed that his failure to testify creates no presumption of guilt he is entitled to that instruction.

While it may be argued that a defendant who fails to take the stand benefits by not having the attention of the jury directed to that fact by such instruction, it may with equal logic be argued that the jury is not likely to overlook defendant's failure to testify even if the court is silent on the subject, and may very well draw adverse inferences if not instructed to the contrary. We therefore think that, however difficult it may be for a defendant to exercise enlightened self-interest in the matter, he should be allowed to make his own choice as to whether or not the instruction should be given. Bruno v. United States, supra, 308 U.S. at p. 294, 60 S.Ct. 198.

We thus hold that the trial court's refusal to charge the jury substantially to the effect of defendant's request was prejudicial error requiring reversal.

II

Because this case must be retried we deem it appropriate to consider the other point claimed by defendant to be reversible error as it might recur on the retrial. Defendant contends that his Fifth Amendment privilege against self-incrimination was violated when the court charged the jury as follows:

'Now you have noticed the different witnesses who have appeared. You have noted and observed their attitude that they took on the witness stand and you noted the readiness with which they responded to the questions put to them. You will ask yourself how they impressed you and what particular motives did they have to testify as they ...