decided as amended september 18 1974.: August 26, 1974.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY Criminal No. 123-73.
Staley, Gibbons and Weis, Circuit Judges
In the unique circumstances of this case, the defendants were denied a fair trial when an improper question was directed to a witness by the prosecutor who then promised, but failed to call another witness who could correct the situation.
The defendants, Joseph Berenato, also known as "Dragon," Sheila Holloway and Robert Powell, were each convicted on counts of conspiracy to assault a federal officer and the assault itself. A co-defendant, Otto Gullo, was acquitted by the jury, and the actual perpetrator of the assault, Raymond George Taylor, who was also named in the indictment, pleaded guilty to the conspiracy count before the consolidated trial began.
The indictment grew out of an attempt by John Comey, an undercover federal narcotics officer, to make a "buy" of drugs from the defendant "Dragon" Berenato. The evidence pointed to the conclusion that the defendants were more interested in getting the cash which the agent had displayed during preliminary negotiations than in actually selling him drugs. Agent Comey testified that after having had discussions with Berenato early in the evening, he returned to a pre-arranged meeting spot in a parking lot adjacent to an apartment building in Lindenwold, New Jersey. At that time, Taylor got into the agent's car and directed him to another parking lot nearby. Once there Taylor brandished a gun and demanded the agent's money. Comey was able to get to his own revolver and shot Taylor several times.
During the course of redirect examination of the agent, the prosecutor posed the following question:
"There was some testimony on cross-examination directed to you asking you whether you shot Raymond George Taylor in the back while he was trying to run away. Are you aware that on May 21, 1973, Raymond George Taylor entered a plea of guilty?"
Defense counsel promptly objected and the trial judge, after a side bar conference, instructed the jury to disregard the question and whatever part of the answer might have been given.*fn1 The jury was then excused for luncheon recess, and the defendants promptly moved for a mistrial. After some discussion, the trial judge deferred ruling until after the recess.
When the court reconvened, the Assistant United States Attorney*fn1a stated, "I can circumvent the necessity of having argument on this. I now represent to the court that I will bring in George Taylor as a witness and he will so testify and there will be no Bruton problem because he will testify and all defense counsel will have an opportunity to cross-examine him as to the truth of that statement." After further argument on the legal points involved, the court adjourned to provide counsel the opportunity for additional research.
On the following day, the prosecutor continued to present evidence and then rested the government's case without calling Taylor. The trial judge, sua sponte, then referred the jurors to the objectionable question and instructed them, inter alia, ". . . the fact that the defendant, Raymond George Taylor, who is named in the indictment, has pleaded guilty . . . is not evidence of the guilt of these four defendants . . ."
The Motion for Mistrial was renewed, and during argument the Assistant United States Attorney stated that he had decided not to call Taylor because the prosecutor had come to the conclusion that curative instructions would be legally adequate to remove any prejudice resulting from the improper question.
The trial judge refused the motion for mistrial on the basis of the instructions which he had given to the jury and stated that the defendants were free to have Taylor as their witness, although on the previous day their counsel had indicated that they did not wish to call him. The judge stated for the record that Taylor had apparently been under the influence of alcohol or drugs on the previous day and ...