State v. Ospina

In State v. Ospina, 239 N.J. Super. 645, 651, 571 A.2d 1373 (App.Div.), certif. denied, 127 N.J. 321, 604 A.2d 597 (1990), decided prior to the adoption of the present rule, the Court held that a defendant who was co-indicted and tried with his wife on drug-related charges had waived his privilege to preclude her testimony by waiting until the close of the State's evidence to assert it. Id. at 652-54, 571 A.2d 1373. The Court observed that although "the realistic prospect that a co-indicted spouse would choose to testify on his or her own behalf is sufficient reason to order severance of trial," neither co-defendant ever indicated that one might testify adversely to the other. Id. at 652-53, 571 A.2d 1373. The wife's denied pretrial severance motion had been advanced on the theory that her husband would testify and exculpate her if he was tried first. Ibid. Defendant's mistrial and severance motions after his wife's counsel forecast defendant's exculpatory testimony in his opening statement were likewise denied. Id. at 652-53, 571 A.2d 1373. Again, there was no mention of the possibility that either spouse intended to inculpate the other. Ibid. When the trial judge denied defendant's belated motion to bar the wife's testimony at the close of the State's case on the ground that defendant had waived the privilege by waiting too long to assert it, we did not hesitate to conclude that "whatever the reason" for defendant's delay, including defense counsel's failed strategy or mere delayed recognition of the issue, "the lateness of the hour was sufficient cause to bar assertion of the privilege, and . . . to visit on defendant the outcome of the game plan, where the outcome is the admission of highly relevant testimony." Id. at 653-54, 571 A.2d 1373.