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State v. Davis

Decided: April 22, 1975.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
RAYMOND DAVIS AND ERNEST PACE, DEFENDANTS-APPELLANTS



For reversal in part and affirmance in part -- Chief Justice Hughes, Justices Jacobs, Mountain, Sullivan, Pashman and Clifford and Judge Collester. Opposed -- None. The opinion of the Court was delivered by Sullivan, J. Pashman, J. (concurring in result only). Pashman, J., concurring in result.

Sullivan

Defendants were tried by jury and convicted of armed robbery. Davis was sentenced to 7-10 years and Pace 12-15 years, both sentences to be served in State Prison.

An appeal, the judgments of conviction were affirmed by the Appellate Division in an opinion reported in part at 127 N.J. Super. 55 (1974). This Court granted certification. 65 N.J. 298 (1974).

The State produced evidence that on October 4, 1968, Joseph Celona of Pleasantville, N.J. was in the dining room of his home counting the day's receipts from his retail store. His sister and their elderly parents were sitting in the living room. When Celona opened the front door in response to a knock, defendants forced their way into

the house announcing a "stick up." Pace was armed with a shotgun and Davis with a pistol. Defendants took some $1200 to $1500 in cash and checks from Celona.

Neither Davis nor Pace testified at trial. Instead they offered alibi witnesses as to their respective whereabouts elsewhere at the time of the robbery. Pace's alibi, which is the only one material to this appeal, was that he was in Chicago on October 4, the date of the robbery.

To rebut Pace's alibi testimony the State called William Harris who testified that he had a conversation with Pace on November 14, 1968 and that Pace told him he was in Camden on October 4, Newark after that, and did not return to Atlantic City where Pace lived until October 11. The State did not attempt to show that Harris was Pace's parole officer and that Pace was then on parole from a previous conviction.

At the conclusion of Harris' direct examination, counsel for Pace made a motion for a mistrial on the ground that Harris' testimony was very prejudical to his client's case. Counsel claimed that in order to explain why Pace had not told Harris the truth about his whereabouts on October 4, it would be necessary to bring out the fact that Harris was a parole officer and that Pace was on parole from a previous conviction at the time. The motion was denied.

On cross-examination it was brought out by Pace's attorney that Harris was a parole officer and that on October 4 Pace was on parole from a previous conviction and that the conversation with Pace had been for the purpose of determining his whereabouts in October of 1968 since leaving the State without permission could be grounds for revocation of parole. It was also brought out that Pace was incarcerated in jail at the time Harris spoke with him. As heretofore noted, both defendants were convicted.

On their appeal to this Court defendants seek to argue that certain trial evidence presented by the State connecting them with the getaway car was barred by the doctrine of collateral estoppel. This contention was not

made at trial nor did defendants place in evidence material in support of any such contention. See State v. Ebron, 61 N.J. 207 (1972).*fn1 Defendants' supplemental letter-brief filed with the Appellate Division made this argument for the first time, but did so on an inadequate record resulting in ...


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