Kolovsky, Lynch and Allcorn.
Defendant appeals from his conviction on two counts of an indictment for (a) possession of a dangerous knife (N.J.S.A. 2A:151-41) and (b) atrocious assault and battery (N.J.S.A. 2A:90-1) on one David Hong. He was acquitted on the third count of the indictment charging atrocious assault and battery on one John Hong. On appeal he contends that (1) the prosecutor's remarks in summation at trial were improper and (2) defendant was denied effective assistance of counsel so as to warrant reversal of the convictions.
Both of defendant's contentions are constructed upon the fact that when defendant took the stand in his own defense his counsel elicited testimony from him only as to the time of his arrest but failed to ask him whether he denied guilt of the offenses charged. Specifically, defendant testified that he was apprehended between the hours of 4 P.M. and 5 P.M. on the day of the crime. The clear purpose of this testimony was to support an inference that he could not have been one of the culprits identified by David Hong immediately after the incident which had occurred, according to the State's testimony, at approximately 10 P.M. on the same day. The trial judge, out of the hearing of the jury, specifically called defense counsel's attention to the fact that he had not asked his client whether he denied the offenses. Counsel responded that he preferred to leave the matter as it was. The defense then rested.
In his summation the prosecutor commented on defendant's failure to deny his participation in the offenses charged. Defense counsel objected on the ground that it was improper for the prosecutor to refer to defendant's failure to deny his guilt. The objection was overruled. Thus comes this appeal.
Defendant contends that, since his only testimony on direct examination related to the time of the arrest and not to his participation in the crimes, the prosecutor's comment as to defendant's failure to deny the offenses was beyond fair comment and violative of defendant's Fifth Amendment rights. He argues that any cross-examination by the prosecutor
(which was waived in this case) must be limited to the scope of the direct examination of defendant and that, by analogy, no adverse comment may be made as to defendant's failure to deny any acts which were not actually covered in his direct examination.
The argument is fallacious. First, the scope of cross-examination of a defendant who testifies on his own behalf is not limited solely to matters brought out on his direct examination but may, in the trial court's discretion, cover other relevant matters. State v. Siegler, 22 N.J. Super. 224, 228 (App. Div. 1952), aff'd 12 N.J. 520 (1953); State v. Grover, 104 N.J.L. 10, 12 (Sup. Ct. 1927). Second, where the accused takes the stand and voluntarily testifies in his own behalf he may not stop short in his testimony by omitting to explain incriminating circumstances already in evidence without subjecting his silence to the inference to be naturally drawn therefrom. State v. Fioravanti, 46 N.J. 109, cert. den. 384 U.S. 919, 86 S. Ct. 1365, 16 L. Ed. 2d 440 (1966). In that case the court quoted with approval the following language from Caminetti v. United States, 242 U.S. 470, 37 S. Ct. 192, 61 L. Ed. 442 (1917):
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. [242 U.S. at 494, 37 S. Ct. at 198].
And as more particularly stated in Fioravanti :
[A] defendant who undertakes to answer part of the evidence against him is subject to comment as to factual thrusts he does not meet, even though he cannot be ordered on cross-examination to testify with respect to them. * * * [W]hen a defendant chooses to speak as to only a part of the direct proof against him, the inference becomes clearer that he is unable to dispute the balance. More importantly
he may thereby gather an advantage that is false, for less than the whole truth may affirmatively mislead. 8 Wigmore, Evidence (McNaughton rev. 1961), § 2276(2), pp. 459-460; cf. State v. DeCola, 33 N.J. 335, 345 (1960). It would distort the truth-finding process to expect the jurors to weigh what the ...