N.J. SUPERIOR COURT, APPELLATE DIVISION

State v. Cullen

CRIMINAL PRACTICE

New Jersey Law Journal

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State v. Cullen, A-5474-10T1; Appellate Division; opinion by Fisher, P.J.A.D.; decided and approved for publication September 18, 2012. Before Judges Fisher, Waugh and St. John. On appeal from the Law Division, Cumberland County. D.D.S. No. 14-2-7701 [9 pp.]

Defendant Rodney Cullen was charged with burglary. On the first day of trial, the jury heard testimony from the property owner and police officers, after which the State rested.

The judge advised defendant of his right to testify, his right to remain silent, and the consequences of his choice, but defendant was not immediately asked to make that choice.

After the lunch break, defendant advised that he would not testify. The judge advised the jury that the defense had rested. After a brief charge conference, the judge was prepared to recall the jury to the courtroom but defense counsel requested additional time to prepare his closing statement and asked that the matter be continued until the following morning. The judge granted the request.

The next morning, before the jury entered the courtroom to hear the closing arguments and the judge's charge, defense counsel advised the judge that defendant had just told him that he wanted to testify. The prosecutor argued that because defendant had rested he had no right to a reopening of the record. After hearing additional argument and allowing defendant to address the court on the issue, the trial judge observed that he had reviewed defendant's rights with him the day before, that defendant was given "plenty of opportunity and time to make that decision," and that he had already "made a decision" not to testify. The judge concluded that it was "not the time" for defendant to change his mind and denied the application to reopen the record to hear his testimony.

On appeal, defendant argues that the judge erred in refusing to reopen the record to permit him to testify.

Held: The judge mistakenly gave greater weight to expediency than to defendant's constitutional right to testify and erred in denying his tardily-requested right to testify.

The panel observes that the right of an accused to testify at a criminal trial is rooted in the Fifth, Sixth and Fourteenth Amendments of the United States Constitution and Article I, paragraphs 1 and 10 of the state constitution.

It says a trial judge's exercise of discretion concerning a request to reopen the record has been considered in far more extreme circumstances. For example, State v. Wolf, 44 N.J. 176 (1965), found shortsighted a judge's determination that there was no authority that would permit reopening the proceedings for further testimony after the jury had been charged and had retired to deliberate. It said that while there is no hard and fast rule, when the ends of justice will be served by a reopening, it ought to be done.

The panel says that although consideration should be given to the prejudice to the opposing party, as well as to the potential for jury confusion when a defendant tardily seeks to exercise the right to testify or offer other evidence, those considerations will normally give way to the interests of justice.

Here, no concerns about prejudice or confusion were urged in opposition to defendant's late request. Nothing of substance with regard to the presentation of evidence had occurred between defendant's initial decision to remain silent and his later decision to testify. Thus, his sudden appearance in the witness box would not have been perplexing to the jury or, if surprising, could have been easily explained to the jury. Further, the judge did not suggest the presence of prejudice or confusion in denying the request. Instead, he erroneously gave greater weight to expedience and the brief delay that would result than he gave to defendant's right to testify. These ephemeral grounds pale in comparison to defendant's constitutional right to testify on his own behalf. The judge relied on inadequate consideations and abused his discretion in denying defendant's request to exercise his important constitutional right to testify.

For appellant — Jay L. Wilensky, Assistant Deputy Public Defender (Joseph E. Krakora, Public Defender). For respondent — David M. Galemba, Assistant Prosecutor (Jennifer

Webb-McRae, Cumberland County Prosecutor).

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