State v. Tyson

• Decision Date: 16 November 1964
• Docket Number: No. A--30,A--30
• Citation: 204 A.2d 864,43 N.J. 411
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Richard O. TYSON, Defendant-Appellant.
• Court: New Jersey Supreme Court

Page 411

43 N.J. 411

204 A.2d 864

STATE of New Jersey, Plaintiff-Respondent, v. Richard O. TYSON, Defendant-Appellant.

No. A--30.

Supreme Court of New Jersey.

Argued Oct. 19, 1964.

Decided Nov. 16, 1964.

Nathan H. Sisselman, Newark, for defendant-appellant (Addonizio, Sisselman, Nitti & Gordon, Newark, attorneys).

Peter Murray, Asst. Prosecutor, for plaintiff-respondent (Brendan T. Byrne, Prosecutor of Essex County, attorney; C. William Caruso, Asst. Prosecutor, on the brief).

The opinion of the court was delivered by

PROCTOR, J.

The defendant Richard Tyson was convicted of robbery (N.J.S. 2A:141--1, N.J.S.A.) and of possession of a dangerous weapon when committing the robbery (N.J.S. 2A:151--5, N.J.S.A.). He was sentenced to imprisonment for 7 to 14 years on the robbery count and 2 to 5 years on the possession count, the sentences to run consecutively. He appealed to the Appellate Division. We certified the matter before argument there.

The State's evidence showed that at about 7:00 A.M. on February 22, 1962, two men gained entry to the Belleville home of Albert Volk, his wife and daughter, Virginia. They ransacked the rooms on the first floor, then proceeded to the sleeping quarters on the second floor where they threatened the awakened Volks with a knife and a toy revolver. The intruders wore silk stocking masks, but one, later identified as Tyson, lifted his mask for about half an hour during the two hours the pair ransacked the Volks' home. They took a number of articles, including a TV set, a record player, electric razors, watches, jewelry, and cash to their car, which was parked in the driveway of the house. They then bound and gagged the Volks and locked them in the bathroom. As they made their get-away in the car, Virginia, who had loosened her bonds, looked through the window and identified the car as a red Buick with a black top. When the police arrived, Virginia told them that she thought she recognized one of the robbers as a man named Hawrylak, whom she had met some time before. About an hour thereafter, Tyson and Hawrylak were intercepted by the Bloomfield police, who had been alerted by police teletype to be on the lookout for a red and black Buick. When apprehended, Tyson and Hawrylak had in their car and on their persons the various articles stolen from the Volk home. Later that morning both men were positively identified as the robbers by the Volks at the Bloomfield police headquarters. The accused were then taken to Belleville police headquarters, where Tyson gave a written statement admitting his participation in the robbery.

Hawrylak pleaded guilty to the robbery charge (the possession charge was later dismissed on motion of the prosecutor) and, at the time of Tyson's trial, was awaiting sentence. Tyson did not take the stand in his own behalf at his trial and he offered Hawrylak as his only witness. Hawrylak, when questioned by defense counsel, admitted knowing Tyson for a number of years but he declined, on the ground that he might incriminate himself, to answer questions as to whether he had borrowed the car used in the robbery, whether he recognized one of the women's stockings used as a mask, whether he know Virginia, whether Tyson was with him at any time on the day of the robbery, and when he had last seen Tyson prior to the crime. The trial court sustained his refusal to answer these questions.

On this appeal Tyson first contends that Hawrylak could not invoke the privilege against self-incrimination because he had earlier pleaded guilty to the crime and therefore had no reasonable cause to apprehend a criminal prosecution. He cites United States v. Gernie, 252 F.2d 664 (2 Cir.1958), cert. denied 356 U.S. 968, 78 S.Ct. 1006, 2 L.Ed.2d 1073 (1958), rehearing denied 357 U.S. 944, 78 S.Ct. 1383, 2 L.Ed.2d 1558 (1958). That case involved a conspiracy to violate the narcotics laws. The government called as its witness Harell, who had previously pleaded guilty to the possession of narcotics and had received a five-year sentence. When the prosecutor asked him where he obtained the narcotics, Harell refused to answer on the ground that it might incriminate him and the judge sustained his refusal. On appeal, the defendant argued that it was error for the government to call Harell in view of his refusal to testify regarding the source of the narcotics of which he had admitted possession. The court held that the government had the right to produce the witness, even though it had reason to believe the witness would refuse to testify, in order to show the jury that it was bringing forward all available witnesses. The court added that Harell could have been compelled to answer the question since he had pleaded guilty and could not fear further incrimination. However, this Dictum failed to note that the witness not only had pleaded guilty, but also had been sentenced. The two cases cited by the court, United States v. Romero, 249 F.2d 371 (2 Cir.1957), and United States v. Cioffi, 242 F.2d 473 (2 Cir.1957), cert. denied 353 U.S. 975, 77 S.Ct. 1060, 1 L.Ed.2d 1137 (1957), also involved witnesses who had been sentenced. There is also Dictum in Namet v. United States, 373 U.S. 179, 83 S.Ct. 1151, 10 L.Ed.2d 278 (1963), to the effect that there is substantial authority for the proposition that a plea of guilty erases the testimonial privilege. But the only case therein cited was Reina v. United States, 364 U.S. 507, 81 S.Ct. 260, 5 L.Ed.2d 249 (1960). That case involved a witness who already had been sentenced. Furthermore, the authorities cited by the the court did not concern themselves with the withdrawal of a guilty plea before sentence: United States v. Romero, supra; 8 Wigmore, Evidence § 2279 (3d ed. 1940); Brown v. Walker, 161 U.S. 591, 16 S.Ct. 644, 40 L.Ed. 819 (1896).

In the present case Hawrylak had not been sentenced at the time he was called by the defendant to testify. The issue, therefore, is whether a witness who has pleaded guilty to a certain crime but has not yet been sentenced has reasonable cause to believe this his testimony...