Kilkenny, Labrecque and Lane.
Defendant was found guilty by a jury of robbery, N.J.S.A. 2A:141-1. On April 29, 1970 he was sentenced to the State Reformatory at Yardville, a maximum of seven years to apply. He timely appeals.
Defendant contends: (1) the admission of the in-court identification of him by the victim was reversible error because it was the product of an out-of-court identification which was a denial of due process; (2) the court erred in not permitting him to call his mother as an alibi witness,
thereby depriving him of due process of law; (3) the court committed plain error in not specifically charging the jury on "alibi," and (4) the court misled the jury as to what the contentions of the defense were.
On June 21, 1969, at approximately 9:50 P.M. to 10:15 P.M., Mr. Britt Hendrickson was standing in front of the Adams Theater in Newark. He had been in Perth Amboy, where he had had a few beers, until about 8:45 P.M. and then had come by automobile to Newark. As he was looking across the street at the Branford Theater, he was pulled to the ground from behind by three colored males. He was struck in the face by two of the men, while the third -- a Negro in a white coat -- went through his pockets and took his wallet containing $105. The lights of the marquee were on. Hendrickson testified that he could clearly see the face of this third man. As a result of the attack, Hendrickson was rendered unconscious and was hospitalized for a number of days thereafter.
Officer James Brackin was on duty in the area of the incident at the time of its occurrence. After making his 10:30 P.M. call into headquarters, the officer was approached by a pedestrian. As a result of what this man told him, the officer proceeded towards the Adams Theater. Another passer-by approached him and his attention was directed across the street to a Negro male in a white coat. This proved to be defendant.
Officer Brackin called for assistance on his walkie-talkie and then followed defendant through a crowd on Broad Street and into a pizzeria. There the defendant was apprehended and placed under arrest. The officer took defendant back to the scene of the robbery where Hendrickson still lay unconscious. After an ambulance arrived for the victim, defendant was taken to the First Precinct where he was searched. Nothing of an incriminating kind was found in his possession. He gave his name as Robert Johnson, 17 years of age, and also told the police his social security
number. All this was false. His correct identification, name and age, were ascertained the next day. There was no record of the social security number given.
At the trial in the County Court a voir dire hearing, out of the presence of the jury, was held concerning the identification procedure. Hendrickson testified thereat that he had been called to come to the Municipal Court about a month and a-half after the incident. The courtroom that day was "full of colored." While he and his wife were sitting there, defendant was brought in by "a white man." Hendrickson immediately recognized defendant as the man who had gone through his pockets. He was asked by the judge in the Municipal Court if he recognized defendant and he answered in the affirmative. When asked if he had had any doubts, he responded:
No, sir. I wouldn't forget him, not that face over me, and going in my pockets.
The trial judge held all testimony concerning identification admissible, apparently finding the identification at the Municipal Court proper and the in-court identification at trial not tainted. In the judge's words:
The court is satisfied that, neither the out-of-court or the Magistrate's Court identification, or the in-court identification, are tainted.
During direct examination before the jury Hendrickson identified defendant as one of his assailants. Nothing was elicited by the prosecutor concerning the Municipal Court identification. This was, however, brought out by defendant's attorney on cross-examination.
Defendant asserts that at his arraignment, on September 22, 1969 in the County Court, he was not represented by counsel. At that time a demand was made upon him for a bill of particulars if he intended to rely on the defense of alibi. However, such a bill was never delivered ...