Conford, Handler and Meanor. The opinion of the court was delivered by Handler, J.A.D.
Defendant was convicted by a jury of assault with an offensive weapon and atrocious assault and battery. He was acquitted of assault with intent to kill. It is asserted that there was reversible error in the trial court's refusal to permit defendant to testify as to his alibi defense.
The jury evidently accepted the State's evidence which demonstrated that Eugene Jackson went to a place called the "Big House" sometime after 2 A.M. on September 17, 1972. While there, defendant, a complete stranger to Jackson, approached him in order to talk to him, ostensibly about "a girl [who] drives a white Mark IV." Defendant then shot Jackson in the stomach. Defendant was identified by Jackson and by another witness who was one of several persons at the scene. Other evidence of a circumstantial nature further implicated defendant. This included the finding of a box of shells on the front seat of a blue Ford pick-up truck registered to defendant, which shells were similar to a spent shell recovered at the place of the shooting. Also, defendant's estranged wife was the registered owner of a white Lincoln Continental Mark IV automobile.
Several defense witnesses, including defendant's wife, testified that they were at the "Big House" at the time of the shooting but did not see defendant there. When defendant testified, he denied that he was at the "Big House" on the night of September 16 and 17 and that he had shot Jackson; he was not asked where he was at the time of the shooting.
On cross-examination and subsequently on rebuttal, he denied that he had told a detective that he had been at the "Big House" earlier on September 16. The detective, on rebuttal, testified that defendant had remarked that he had been there earlier that day.
After the State rested and before the presentation of defendant's case, the State requested an instruction that defense counsel could not elicit any information about an alibi defense. The State noted that the defendant had failed to comply under R. 3:11-1 and 2 with two separate requests on April 5 and May 21, 1973 for notice of alibi. Defendant admitted that no defense of alibi was submitted. The defense offered that it "would not bring in any other witnesses as to him [defendant] being some other place other than his own testimony."
The State noted that it had no objection to testimony of either the defendant or other witnesses that the defendant was not present at the scene. The State did object to a claim by the defendant that he was at some other specific place at the time of the shooting. Defense counsel argued that the alibi rule only reached other witnesses and not defendant. The trial judge ruled that R. 3:11-1 required defendant (a) to submit the names and addresses of alibi witnesses and (b) to state the specific place at which he claims to have been at the time of the offense. Accordingly, he denied defendant the right to testify with respect to any other place that he may have been at the time of the alleged offense.
The constitutional validity of notice of alibi rules has been established. Williams v. Florida, 399 U.S. 78, 90 S. Ct. 1893, 26 L. Ed. 2d 446 (1970); State v. Angeleri, 51 N.J. 382, cert. den. 393 U.S. 951, 89 S. Ct. 372, 21 L. Ed. 2d 362 (1968) (upholding the validity of R.R. 3:5-9, the predecessor of the current rule). It has been stated most recently that "the Due Process Clause of the Fourteenth Amendment forbids enforcement of alibi rules unless reciprocal discovery rights are given criminal defendants." Wardius v. Oregon, 412 U.S. 470, 472, 93 S. Ct. 2208, 2211, 37
L. Ed. 2d 82 (1973). R. 3:11-1 provides specifically for such reciprocal discovery, viz :
If a defendant intends to rely in any way on an alibi, he shall, on written demand of the prosecuting attorney and within 10 days thereafter, furnish a written bill of particulars, signed by him, stating the specific place or places at which he claims to have been at the time of the alleged offense and the names and addresses of the witnesses upon whom he intends to rely to establish such alibi. Within 10 days after receipt of such bill of particulars from the defendant, the prosecuting attorney shall, on written demand, furnish the defendant or his attorney with a written bill of particulars stating the names and addresses of the witnesses upon whom the State intends to rely to establish defendant's presence at ...