For modification -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. Opposed -- None. The opinion of the court was delivered by Weintraub, C.J.
On the night of July 19-20, 1962 the premises of Abbott's Dairy on Old Mill Road in Wall Township, New Jersey, were broken into and substantial amounts of money and checks were taken from a safe. Two men were indicted on six counts. One of them, Angelo Belardo, pleaded guilty. The other, John Fioravanti, stood trial and was convicted on all counts. We certified Fioravanti's appeal before the Appellate Division acted upon it.
Both Fioravanti and Belardo lived in the Trenton area. The crimes occurred in Monmouth County, some 45 miles away.
Fioravanti's Cadillac convertible was one of several automobiles kept under surveillance that night by the police of Wall Township, Neptune Township, Neptune City, and Asbury Park for reasons not disclosed in the record. Eventually Fioravanti's car was parked behind the Royal Manor restaurant. At about 11:00 P.M. the police observed its two occupants
leave the car and walk along Route 35 and then down Old Mill Road in the direction of Abbott's Dairy. The officers kept their watch of the vehicle until they were replaced by others, who at about 1:00 A.M. saw two men come through a field toward the Fioravanti car, each carrying a bundle. The men stopped short of the car and one, after giving his bundle to the other, went to the car and then drove to and picked up his waiting confederate.
The police followed the car, but it reversed its course after some 100 yards. Being out of position to continue the surveillance, the officers radioed a request that another car take it up. The officers then turned into Old Mill Road, and finding the dairy plant had been entered and its safe forced, they radioed this information and asked that the occupants of the Fioravanti car be picked up. They were apprehended and the bundles seized. The bundles contained burglar tools and the loot.
Belardo testified for the defense. He admitted his guilt, but said he alone was involved. He said he had hidden the burglar tools in a field near the dairy a couple of days before the crime; that on the night in question he left Fioravanti at a motel at about 11:00 P.M.; that at about 1:00 A.M., after he had completed the job at the dairy, he went to the parking lot of the Royal Manor and placed the tools on the front floorboard of Fioravanti's automobile; that, carrying the bag containing the stolen property, he started along the road toward a food stand when Fioravanti, without prearrangement and unaware of any of this, came along and picked him up. He agreed the two bundles were in the front of the car at the time of the arrest and that Fioravanti was the driver.
As already noted, there was direct testimony that two men, rather than one as Belardo claimed, were involved. There was also direct testimony that both Belardo and Fioravanti were at the dairy earlier that day on the pretext, as the State claimed, that they were looking for work. Belardo admitted they had been there, and that he looked around while Fioravanti inquired in the office as to employment prospects, but
Belardo insisted Fioravanti really wanted employment. Further, a police officer identified Fioravanti as one of the two men who left the automobile and walked into Old Mill Road at about 11:00 P.M., and Fioravanti admittedly was driving the car at the time of apprehension. Finally the State introduced testimony that on the trousers the police took from Fioravanti were telltale bits of paint and safe lining which matched control samples taken from the safe which had been forced. Belardo, however, testified the trousers were his.
The defense also offered the testimony of two women from Trenton, friends of Fioravanti, who said they drove to the shore area to meet him at the Royal Manor; that by chance they saw him standing near a motel; that they took him in their car to a bar and eventually dropped him off at the Royal Manor restaurant at about 1:00 A.M. A third woman, also from Trenton, said she too was at the bar with defendant during that period, which, of course, was the period in which, according to the State's evidence, the burglary occurred.
The State's case was very strong and the defense testimony was rather patently contrived. Fioravanti did not take the stand, but at the conclusion of the testimony of the last defense witness, his counsel asked for an opportunity to have Fioravanti try on the trousers which the police said were taken from him. Fioravanti was permitted to do so and to walk before the jury. On the basis of that demonstration the defense argued the trousers could not have been Fioravanti's but rather belonged to Belardo, who, according to the testimony, was taller and heavier than Fioravanti. In this connection we note the case was tried on March 23 and 24, 1964, almost two years after the date of the crime.
The first, and troublesome, issue is whether the conviction should be set aside because of the trial court's comment upon the failure of the defendant to take the stand. The case was tried prior to Malloy v. Hogan, 378 U.S. 1, 84 S. Ct. 1489,
12 L. Ed. 2 d 653 (1964), which held the Fifth Amendment applicable to the states, and Griffin v. State of California, 380 U.S. 609, 85 S. Ct. 1229, 14 L. Ed. 2 d 106 (1965), which thereafter held the Fifth Amendment barred comment upon a defendant's failure to testify. In the present case the trial court charged, in harmony with our decision in State v. Corby, 28 N.J. 106, 117 (1958), and N.J.S. 2A:84A-17(4), that
"* * * His failure to be a witness in his own behalf raises no presumption of guilt nor does it erase the presumption of innocence. But if facts are testified to which tend to inculpate the defendant, which facts he could by his oath deny, his failure to testify in his own behalf may be considered by you and you may infer that he could not truthfully deny the inculpatory facts adduced against him."
After Malloy and Griffin we held that although the Corby type instruction does not authorize an inference of "guilt," nonetheless Griffin must be read to strike down a comment which permits an inference that a defendant cannot deny inculpatory facts he could meet by his own oath. State v. Lanzo, 44 N.J. 560 (1965); State v. Aviles, 45 N.J. 152 (1965); State v. Davis, 45 N.J. 195 (1965).
We also held in Lanzo that on a direct appeal from a judgment of conviction we would give to defendants tried before Malloy the benefit of the new doctrine even though the issue was not raised at the trial. But we have declined to permit a defendant to say that had the new doctrine been then in effect he might have tried his case in a different way and hence there should be a reversal to permit him to make a new tactical decision in the new light. State v. Garvin, 44 N.J. 268 (1965). And so here, while we accord Fioravanti the benefit of the new constitutional doctrine even though he made no objection at the trial, we apply the doctrine to the case as it was tried rather than upon a speculation as to how he might have gone about his defense if he knew then what he knows now.
Thus we come to the State's contention that the trial court's comment was warranted because the defendant, as we noted above, chose to put on the trousers and walk in front
of the jurors to persuade them the trousers were not taken from him despite the categorical testimony of the police officer that they were. Implicit was not only an assertion the trousers were not his but also, in support thereof, that the measurement of his waist had not changed in the considerable interval between the date of the crime and the date of the trial.
In Caminetti v. United States, 242 U.S. 470, 37 S. Ct. 192, 61 L. Ed. 442, (1917), the defendant took the stand and met part of the government's testimony. The trial court informed the jury the defendant could not be compelled to say more, nor could he be cross-examined as to matters not covered by his direct testimony, but he having elected to testify, then "if he has failed to deny or explain acts of an incriminating nature that the evidence of the prosecution tends to establish against him, such failure may not only be commented upon, but may be considered by the jury with all the other circumstances in reaching their conclusion as to his guilt or innocence; since it is a legitimate inference that, could he have truthfully denied or explained the incriminating evidence against him, he would have done so." 242 U.S., at p. 493, 37 S. Ct., at p. 197, 61 L. Ed., at p. 456. This comment is no different from the Corby comment made in the case before us. The Court upheld the instruction saying (242 U.S., at pp. 493-495, 37 S. Ct., at p. 198, 61 L. Ed., at pp. 456-457):
"This instruction, it is contended, was error in that it permitted the jury to draw inferences against the accused from failure to explain incriminating circumstances when it was within his power to do so, and thus operated to his prejudice and virtually made him a witness against himself, in derogation of rights secured by the 5th Amendment to the Federal Constitution.
There is a difference of opinion expressed in the cases upon this subject, the circuit court of appeals in the eighth circuit holding a contrary view, as also did the circuit court of appeals in the first circuit. See Balliet v. United States, 64 C.C.A. 201, 129 Fed. 689; Myrick v. United States, 134 C.C.A. 619, 219 Fed. 1. We think the better reasoning supports the view sustained in the court of appeals in this case, which is that where the accused takes the stand in his own behalf and voluntarily testifies for himself (Act of March 16, 1878, 20 Stat. at L. 30, chap. 37, Comp. Stat. 1913, § 1465), he may
not stop short in his testimony by omitting and failing to explain incriminating circumstances and events already in evidence, in which he participated and concerning which he is fully informed, without subjecting his silence to the inferences to be naturally drawn from it.
The accused, of all persons, had it within his power to meet, by his own account of the facts, the incriminating testimony of the girls. When he took the witness stand in his own behalf he voluntarily relinquished his privilege of silence, and ought not to be heard to speak alone of those things deemed to be for his interest, and be silent where he or his counsel regarded it for his interest to remain so, without the fair inference which would naturally spring from his speaking only of those things which would exculpate him and refraining to speak upon matters within his knowledge which might incriminate him. * * *
The court did not put upon the defendant the burden of explaining every inculpatory fact shown or claimed to be established by the prosecution. The inference was to be drawn from the failure of the accused to meet evidence as to these matters within his own knowledge and as to events in which he was an active participant and fully able to speak when he voluntarily took the stand in his own behalf. We agree with the circuit court of appeals that it was the privilege of the trial court to call the attention of the jury in such manner as it did to this omission of the accused when he took the stand in his own behalf."
The holding of Caminetti was reiterated in Raffel v. United States, 271 U.S. 494, 46 S. Ct. 566, 70 L. Ed. 1054 (1926), and seems not to have been questioned at any time. Its validity was accepted in Johnson v. United States, 318 U.S. 189, 196, 63 S. Ct. 549, 87 L. Ed. 704, 711 (1943). See also Dyson v. United States, 283 F.2d 636, 637 (9 Cir. 1960), cert. denied 366 U.S. 974, 81 S. Ct. 1944, 6 L. Ed. 2 d 1264 (1961); Carpenter v. United States, 264 F.2d 565, 569-570 (4 Cir.), cert. denied 360 U.S. 936, 79 S. Ct. 1459, 3 L. Ed. 2 d 1548 (1959); Krotkiewicz v. United States, 19 F.2d 421, 424-425 (6 Cir. 1927); Grantello v. United States, 3 F.2d 117, 121 (8 Cir. 1924). Cases elsewhere agree with ...