State v. Williams

• Decision Date: 06 December 1971
• Citation: 59 N.J. 493,284 A.2d 172
• Parties: STATE of New Jersey, Plaintiff-Appellant, v. James Earl WILLIAMS, Defendant-Respondent.
• Court: New Jersey Supreme Court

Page 493

59 N.J. 493

284 A.2d 172

STATE of New Jersey, Plaintiff-Appellant, v. James Earl WILLIAMS, Defendant-Respondent.

Supreme Court of New Jersey.

Argued Oct. 13, 1971.

Decided Dec. 6, 1971.

Joseph A. Fusco, Asst. Prosecutor, for appellant (Joseph P. Lordi, Essex County Prosecutor, attorney).

Jack I. Doppelt, East Orange, for respondent.

The opinion of the Court was delivered by

WEINTRAUB, C.J.

Defendant Williams was convicted of false swearing. The Appellate Division reversed, finding defendant was denied his Fifth Amendment privilege against self-incrimination, 112 N.J.Super. 563, 272 A.2d 294 (App.Div.1970). We granted certification, 58 N.J. 161, 275 A.2d 742 (1971). We affirm the judgment of the Appellate Division but for reasons other than those it gave.

This case involves the recurring problem of a recanting State's witness in a criminal prosecution. Williams gave a sworn statement to the prosecutor identifying Willie James Washington as the perpetrator of a homicide. Before the grand jury considering the charge against Washington, Williams wavered but finally reiterated the substance of the sworn statement and on the basis of that testimony Washington was indicted for murder. In preparing for the murder trial, the prosecutor learned from Williams that he would not repeat that testimony. Having no case without the testimony of Williams, the State subpoenaed him to testify at a pretrial hearing in the homicide matter to determine whether he would, under oath, recant. Williams did recant, the murder indictment was dismissed, and Williams was then indicted for false swearing, the charge involved upon this appeal.

We should say a word about the procedure thus employed to determine whether Williams would or would not adhere to his sworn statement. In State v. Guido, 40 N.J. 191, 199-200, 191 A.2d 45, 50 (1963), we said:

We should add an observation with respect to the problem posed by the State's plea of 'surprise' to Vella's testimony. It is perfectly apparent that before Vella was called, the State had been told it would get the very answers he gave but nonetheless it called him to the stand. Defendant says the prosecutor therefore was not 'surprised' by the disappointing answers and neutralization should not have been permitted, citing State v. Caccavale, 58 N.J.Super. 560, 573 (157 A.2d 21) (App.Div.1959). As the Appellate Division there said, in some cases there may be residual harm despite a trial court's firmest effort to erase what is revealed before the jury in the neutralizing process. Yet the State should not be compelled to accept an unsworn disavowal for it may not really know whether the witness will, under oath, maintain the second story. Cf. State v. DeCola, 33 N.J. 335, 351 (164 A.2d 729) (1960). We think that fairness can be assured in the following way. When counsel has been advised a witness will not adhere to a prior statement but feels he should test that disavowal under oath, he should so inform the court at side bar. The witness should then be examined in the absence of the jury. So much of his testimony as is not neutralized may then be repeated in its presence.

In the case at hand, the State did not await the trial of the homicide charge to learn whether Williams would recant under oath, and probably did not do so because it knew the murder indictment would fall if Williams did repudiate his original statement. Hence the expeditious course was to have a pretrial hearing in the homicide case. The Appellate Division, 112 N.J.Super. at 566, 272 A.2d 294, found this procedure was consonant with Guido, and we agree. We turn then to the meritorious issue.

N.J.S.A. 2A:131--4 provides:

Any person who willfully swears falsely in any judicial proceeding or before any person authorized by any law of this state to administer an oath and acting within his authority, is guilty of false swearing and punishable as for a misdemeanor.

N.J.S.A. 2A:131--5 reads:

If a person has made contrary statements under oath, it shall not be necessary to alleged in an indictment or allegation which statement is false but it shall be sufficient to set forth the contradictory statements and allege in the alternative that one or the other is false.

Proof that both statements were made under oath duly administered is prima facie evidence that one or the other is false; and if the jury are satisfied from all the evidence beyond a reasonable doubt that one or the other is false and that such false statement was willful, whether made in a judicial proceeding or before a person authorized to administer an oath and acting within his authority, it shall be sufficient for a conviction.

The false swearing indictment was framed wholly in terms of the section last quoted. It charged that in the sworn statement given in the investigation Williams said he saw Washington fire the fatal shots whereas in the pretrial testimony in the homicide case, Williams swore that he did not know who the assailant was. The indictment then averred that Williams 'on either of the aforesaid dates mentioned, did willfully swear falsely in that one or the other aforesaid contrary statements * * * were false.'

At his trial, Williams testified that the first sworn statement was extorted by detectives by threats of physical harm, whereas the State's testimony was that Williams, in saying he would not stay with his first version, gave as his reason that he feared for his life if he testified against Washington, and therefore would choose a jail term for false swearing. Thus in the trial the State actually focused its charge of falsity upon the final testimony. But the indictment was not so framed, for as we have mentioned, it alleged falsity in either of the inconsistent statements, and the charge to the jury followed the indictment and called for a guilty verdict if willful falsity was found with respect to either of the sworn statements.

Thus the jury, in finding Williams guilty, was permitted to use his testimony in the pretrial hearing in the homicide case to find that his initial sworn statement was false. The Fifth Amendment issue stems from that circumstance. Williams was compelled by subpoena to testify in the pretrial hearing in the murder case. He did not assert a privilege against self-incrimination with respect to a charge arising out of his prior statements. Nor had he been advised of his right to assert a privilege in that regard. The assistant prosecutor did warn Williams that if he departed from his first sworn statement, he might be liable to conviction for false swearing, but the assistant prosecutor did not tell Williams that under State v. DeCola, 33 N.J. 335, 164 A.2d 729 (1960), he could assert his Fifth Amendment privilege and thereby avoid the use of a compelled answer in a prosecution which charged falsity in his earlier sworn statement.

In DeCola the State learned through a newspaper account that a witness, Mrs. Hansen, who had testified before a grand jury in a homicide case, would not testify at the trial of the indictment. She was summoned before a second grand jury and asked the same questions she had answered before the first grand jury. Claiming the privilege against self-incrimination, she refused to answer even when ordered by the court to do so, whereupon she was convicted of contempt. She was then subpoenaed to testify at the murder trial where she again refused to answer, asserting her Fifth Amendment privilege. The basis of the plea was an unparticularized assertion that her testimony might reveal perjury in her first grand jury testimony. The trial court ordered her to answer, and when she declined, she was again convicted of contempt.

Starting with the settled rule that the trial judge is not to accept the witness' mere statement that the answer will tend to incriminate him, 33 N.J. at 350, 164 A.2d 729, we found it impossible for the trial court to decide on a naked claim of privilege whether the witness was really concerned about a charge of falsity in the prior testimony. We noted that in this area, the fear is not academic 'that the claim of privilege may be spurious; that because of bribe, threat, or a purpose to favor another, a witness who speaks before a grand jury may later assert the privilege to cloak nothing but a refusal to repeat the truth.' 33 N.J. at 349, 164 A.2d at 736. Hence we said that 'If we assume Mrs. Hansen was stating inferentially that she would not adhere to her prior testimony, still there is no intelligent basis for determining whether she did face a peril. For all the court may know, the inferential assertion may be false, her original testimony may be the truth as she understands it, and hence if she is compelled to answer, her testimony will coincide with her prior testimony.' 33 N.J. at 351, 164 A.2d at 737. Upon a balancing of the competing values discussed at length, 33 N.J. at 344--352, 164 A.2d 729, we concluded that the witness' claim of privilege must be overruled, but that the witness will be protected from the use of her compelled testimony in any charge that she swore falsely in prior testimony. Cf. United States v. Blue, 384 U.S. 251, 255, 86 S.Ct. 1416, 16 L.Ed.2d 510, 514 (1966).

But we stressed that Mrs. Hansen could be charged with perjury or false swearing in her compelled testimony, for the Fifth Amendment protects a witness only with respect to disclosure of a past offense and does not entitle the witness to commit perjury in the testimony given under an order to testify. 33 N.J. at 354, 164 A.2d 729. See State v. Toscano, 13 N.J. 418, 423, 425, 100 A.2d 170 (1953); United States v. Knox, 396 U.S. 77, 82, 90 S.Ct. 363, 24 L.Ed.2d 275, 280 (1969); United States v. Kahriger, 345 U.S. 22, 32, 73 S.Ct. 510, 97 L.Ed. 754, 763 (1952); Glickstein v. United States, 222 U.S. 139, 142, 32 S.Ct. 71, 56 L.Ed. 128, 130 (1911); Robinson v. United States, 401 F.2d 248, 251 (9 Cir. 1968); United States v. Orta, 253 F.2d 312, 314 (5 Cir. 1958), ...