State v. Goodman ( 1952 )

Wachenfeld, J.

(dissenting). The following briefly expresses my views bringing me to an opposite conclusion.

I am in accord with much of the majority opinion, including the finding that there was no error in refusing to direct a judgment of acquittal and that the verdict was not- contrary to the weight of the evidence. My difficulty lies in the admission of certain telephone calls and the failure to charge in reference thereto, and certain cross-examination after the calls had been stricken from the record.

Goodman claims error in the admission of telephone calls allegedly made by Eisenstein to the City Hall and the inadequate striking out of such testimony. He contends the cross-examination of Eisenstein went beyond the proper limits, to his prejudice, as it dwelt upon and related to evidence which had been stricken from the record by the court, and he urges 'the prejudicial effect was increased by the court’s refusal to charge as requested.

These telephone calls were all made to MA 3-3233, the general exchange of the City Hall, and impropriety in their admission is urged as they were not connected up with one or more of the defendants.

Efforts were made by counsel to bar the calls, and the defense lawyers at the time inquired pointedly as to whether or not the prosecution would represent that they would subsequently be connected up with the defendants. A long colloquy ensued in which all counsel made the same demand but the inquiry was never specifically answered by the prosecutor. He gave many reasons why the testimony should be admitted but would not give a direct reply, contending: “These telephone calls that have been taken here show a pattern or relation of calls back and forth in this case, out of town, out of the state, and they tie in with the dates, with the critical dates we have been talking about for ten days.”

Despite a string of objections, the court, after expressing grave doubts, finally admitted the evidence, saying: “These are the only calls that give me concern. Aside from them I think the evidence is clearly admissible to show conduct among the defendants. I come to some hesitation about these calls to the City Hall.- However, I think the situation has been made clear to the jury that the number at the City Hall, which has been referred to, is the general exchange of the City Hall. And as long as they understand that, I will overrule the objection and note the several objections.”

Admitting Market 3-3232 was the general exchange of the Newark City Hall, the Prosecutor theorized that the evidence objected to was being offered as inferential proof of conversations between Eisenstein and Goodman.

If the court was “concerned” about the admissibility of the calls and had “some hesitation” about them, that doubt ordinarily would follow the presumption of innocence and should have been resolved in favor of the defendants.

The court, after having admitted the calls, on the following day came to an opposite conclusion. It then ruled the evidence should be stricken and accordingly struck the 23 toll call slips marked as exhibits, evidencing the calls to the City Hall, but the slips were retained for identification for any future use they might be put to. This is what is referred to in the majority opinion as an “expeditious action.”

In doing so, the court said: “I might indicate to the jury that when this happens it is unfortunate because the jury hears this testimony and then it is stricken, and when it is stricken the evidence is taken out of the case and it is strictly a mental effort for you to forget it; in other words, not consider it in evidence at all.”

Generally, error in receiving inadmissible evidence may be cured by its subsequent withdrawal or striking, Rempfer v. Deerfield Packing Corp., 4 N. J. 135 (1950), but when error is or may be so damaging that its striking may not suffice, a new trial must be awarded.

“* st st where the evidence thus admitted is so impressive that in the opinion of the appellate court, its effect is not removed from the minds of the jury by its subsequent withdrawal, or by instruction by the court to disregard it, judgment will be reversed on account of its admission.” Boniewsky v. Polish Home of Lodi, 103 N. J. L. 323 (E. & A. 1927).

The evidence subsequently declared improper and ruled out by the court remained with the jury all day and overnight and they might well have discussed it amongst themselves. The prosecutor’s theory that the calls were akin to a meeting between Eisenstein and Goodman was most impressive and important because it directly contradicted Goodman, who testified he never talked to Eisenstein.

Discussing the effect of improper testimony subsequently stricken from the record, the court, in State v. Sprague, 64 N. J. L. 419 (Sup. Ct. 1900), said:

“It had been admitted to the jury after repeated strenuous objection on behalf of the defendant, and had been fully heard by them. * * * It had gone deliberately to the jury, and had been fully taken into their consideration, and I cannot perceive how its harmful and prejudicial effect could be obviated or cured by having the evidence at this stage of the proceeding merely and formally stricken from the record.”

Nor can I subscribe to the majority’s conclusion that the jurjq from the “totality of the evidence including all the circumstances,” had the right to conclude that Goodman talked to Eisenstein at the City Hall. It was specifically denied and other than the stricken testimony, there was not a word to support it.

No magic cloak is supplied by an accusation which permits a jury to draw any inference it desires from the testimony submitted. A lawful inference must spring from or be logically r.elated to a proven fact.

If there was error in this regard, its prejudice was heightened by the cross-examination of Eisenstein in which the prosecutor referred to the same telephone calls which had been ruled out of evidence. In a lengthy cross-examination, these calls were intermingled with others made by Eisenstein which he admitted, and after gaining this admission, in many instances the prosecutor would ask: “* * * did you or did you not call the Newark City Hall and talk for 4-6/10 minutes”? and again: “Did you at 9 :31 a. m. call the Newark City Hall and talk for 3-3/10 minutes”? and so on, on many occasions. The purpose of the cross-examination is only too obvious. It was improperly bringing back to the jury the same telephone calls which had been ruled inadmissible and had been stricken from the record. It could have no other purpose excepting to impress upon the minds of the jury, by reference to testimony already ruled out, an inference not warranted by legal evidence.

If doubt remains as to whether or not the error was prejudicial and harmful, it is dispelled by the failure of the court to charge the defendant’s sixth request to charge: “The jury are instructed that you may not find as a fact nor infer from any of the evidence in this case that Eisenstein’s telephone calls to Newark City Hall were made to Ira Goodman.” Under the circumstances, the defendant was entitled to that charge.

The difficulty encountered in admitting evidence subsequently determined to be erroneous, resulting in its being stricken from the record, is realistic and vital. The majority opinion admits it must be “effectively removed.” All of the adjudicated cases place upon the court the obligation of endeavoring to eradicate it from the minds of the jury by employing every method having a tendency to accomplish this end.

It must clearly appear that the testimony illegally admitted was so eradicated from the case that its admission could not have injuriously affected the accused. Bullock v. State, 65 N. J. L. 557 (E. & A. 1900).

The short, simple request to charge, couched in a few plain words, would have been an aid in this respect and its refusal, I think, was error.

“In a criminal trial, considering the serious potentialities of a conviction, a defendant should not be required to contend with inadmissible evidence, where it appears that it may have a prejudicial effect upon a court or jury.” State v. Dietz, 5 N. J. Super. 222 (App. Div. 1949).

So, too, I believe error was committed in the admission and refusal to strike from the record the telephone calls made by Eisenstein to Mitchell 2-0940, the Newark Health Department. The calls to the City Hall were struck but the court refused to strike those made to the Health Department. They are identical in fact. In each circumstance there was a central switchboard; in each there were many and divergent departments; in each there were many employees and executives, any one of whom could have received the calls in question. The admission of such evidence against Powell, in my opinion, was prejudicial and constituted reversible error.

For these reasons I am compelled to the conclusion that the defendants suffered manifest wrong or injury and must vote to reverse the judgment below.

For affirmance — Chief Justice Vanderbilt, and Justices Heher, Oliphant, Burling, Jacobs and Brennan — 6.

For reversal — Justice Wacheneeld — 1.