For affirmance -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For reversal -- None.
[51 NJ Page 383] Defendant was convicted of violations of N.J.S. 2A:138-1 (carnal abuse) and of a violation of N.J.S. 2A:96-3 (impairment of a minor's morals) involving a 12-year-old girl. We certified his appeal before argument in the Appellate Division.
Defendant challenges the constitutionality of R.R. 3:5-9*fn1 which requires a defendant, if he intends to rely upon an alibi, to furnish before trial a bill of particulars of that claim and the names and addresses of the witnesses "upon whom he intends to rely to establish such alibi." Defendant, asserting the rule invaded his privilege against self-incrimination under the Fifth and Fourteenth Amendments, moved to vacate the State's demand for particulars, which motion was denied. Both the Appellate Division and we denied leave to review that order before trial. State v. Angeleri, 48 N.J. 348 (1966). Defendant then complied with the rule, listing six witnesses, but calling only two at the trial. The State made no comment upon his failure to call the remaining witnesses.
Our rule of Court is not designed to compel a defendant to say anything. Rather it requires the specified pretrial
disclosure if, but only if, the defendant plans to assert an alibi. As we said in State v. Baldwin, 47 N.J. 379, 388 (1966), certiorari denied, 385 U.S. 980, 87 S. Ct. 527, 17 L. Ed. 2 d 442 (1966):
"* * * In calling upon a defendant to reveal a claim of that kind before trial, our rule is designed 'to avoid surprise at trial by the sudden introduction of a factual claim which cannot be investigated unless the trial is recessed to that end.' State v. Garvin, 44 N.J. 268, 272-273 (1965). Our rule replaced a statute, R.S. 2:190-7, adopted in 1934. As the statement annexed to the legislative bill recited, the purpose of that act was 'to do away with the existing unfairness in criminal trials of a surprise alibi * * *.'"
See 6 Wigmore, Evidence (3 d ed. 1940) § 1855 b, pp. 418-420. There is no suggestion that the State sought the pretrial disclosure for any other reason or put it to any other use.
Defendant does not say his alibi, or its pretrial disclosure, did in fact incriminate him. In any event, if an alibi should tend to incriminate an accused, it must be because of its inherent infirmity. The Constitution does not protect a defendant from the consequences of the defense he makes, nor assure him a right so to defend as to deny the State a chance to check the truth of his position. The cases uniformly reject the constitutional challenge here made. Rider v. Crouse, 357 F.2d 317, 318 (10 Cir. 1966); Jones v. Superior Court of Nevada County, 58 Cal. 2 d 56, 22 Cal. Rptr. 879, 882, 372 P. 2 d 919, 922, 96 A.L.R. 2 d 1213 (Sup. Ct. 1962); State v. Stump, 254 Iowa 1181, 119 N.W. 2 d 210, 219 (Sup. Ct. 1963), certiorari denied, 375 U.S. 853, 11 L. Ed. 2 d 80 (1963); People v. Shulenberg, 279 App. Div. 1115, 112 N.Y.S. 2 d 374 (3 d Dept. 1952); People v. Rakiec, 260 App. Div. 452, 23 N.Y.S. 2 d 607, 612-613 (3 d Dept. 1940); People v. Schade, 161 N.Y. Misc. 212, 292 N.Y.S. 612 (Cty. Ct. 1936); State v. Thayer, 124 Ohio St. 1, 176 N.E. 656, 657, 75 A.L.R. 48 (Sup. Ct. 1931); Commonwealth v. Vecchiolli, 208 Pa. Super. 483, 224
A. 2 d 96, 99 (Super. Ct. 1966); State v. Kopacka, 261 Wis. 70, 51 N.W. 2 d 495, 30 A.L.R. 2 d 476 (Sup. Ct. 1952), annotated, 30 A.L.R. 2 d 480 (1953); 1 Wharton, Criminal Evidence (12 th ed. 1955) § 23, p. 75; 2 Underhill, Criminal Evidence (5 th ed. 1956) § 440, p. 1110; see State v. Dodd, 101 Ariz. 234, 418 P. 2 d 571, 574 (Sup. Ct. 1966).
Defendant did not take the stand. He contends that during the trial the prosecutor alluded to defendant's right to testify and then in summation referred to his failure to do so. As to the first, the defense had suggested to the jurors in the voir dire that a certain relationship had existed between the defendant and the child's mother. The prosecutor simply said that whatever the defendant might say in that regard would be irrelevant. The reference to the defendant's right to testify was incidental to the prosecutor's reaction to a position taken by the defense. As to the summation, the prosecutor apparently intended only to note that a factual assertion made by the defense during the trial had not been backed up by testimony. No objection was made to that remark. In fact defendant himself called attention to his right to testify, his counsel saying in the opening that "It will be his word against hers." At any rate, the trial court charged the jury that no inference should be drawn against defendant because of his failure to testify. We do not doubt the clear capacity of the instruction to dissipate any suggestion to the contrary by the prosecutor. See State v. De Stasio, 49 N.J. 247, 252 (1967), certiorari denied, 389 U.S. 830, 88 S. Ct. 96, 19 L. Ed. 2 d 89 (1967). Nor does it matter that ...