Matthews, Lora and Morgan.
Defendant was convicted of first degree murder of Juan Cadiz, a bartender at the U & I Bar in Trenton, during an armed robbery and was sentenced to life imprisonment at the New Jersey State Prison.
He contends that (1) the admission of rebuttal testimony of William Soost, an investigator with the office of the Public Defender regarding conversations he had with certain individuals about their becoming alibi witnesses, and the prosecutor's comments thereon, violated the hearsay rule and defendant's right to confrontation of witnesses; (2) the
trial judge committed plain error in failing to instruct the jury on the factors to consider in weighing identification testimony; (3) the prosecutor's comments in summation implying that the trial judge had already found the pretrial identification procedures employed by the police not to be suggestive constituted plain error; (4) the prosecutor deprived defendant of a fair trial when he introduced the issue of defendant's poverty into the case; (5) the trial judge erred in failing to specifically instruct the jury that in considering the statements allegedly made by the defendant to the police, they should first decide whether he made such statements; (6) the prosecutor misrepresented Detective Di Natale's testimony, to defendant's prejudice in asking defendant whether he remembered hearing the detective testify that the police had talked to James Austell and he could not corroborate defendant's alibi; (7) the pretrial photographic and lineup identifications of defendant by the witnesses Santiago, Molina and Figueroa were impermissibly suggestive; (8) the totality of the errors was so prejudicial as to deny defendant a fair trial, and (9) the trial judge erred in sentencing defendant without a presentence report, and such error was not harmless even though defendant was convicted of first degree murder since the trial judge had the power to sentence defendant to the Youth Complex for an indeterminate term with a maximum of life and, if not, the failure to order a presentence report was nevertheless prejudicial to the defendant.
On rebuttal the State called William Soost who had investigated the case for the Public Defender. He testified that, after talking to defendant, he spoke to Billie Shore, Shirley McClain, Scoop Thompson and Alfred Council. Defendant's objection to a question as to what Soost had concluded about these individuals becoming alibi witnesses, was sustained. In response to the prosecutor's question as to how many names were supplied to the State as alibi witnesses, he stated that only the name of James Austell was so supplied. He further testified that the names of these four
persons were not supplied as alibi witnesses, defense counsel interjecting that they all had been listed as possible witnesses when the trial started. The prosecutor thereafter in his summation alluded to this testimony:
Soost went out and he talked to these people. He advised both Shorter and McClain; look, we represent Earl Robinson, Earl Robinson is charged with a murder committed in the U & I Bar on the 31st. That's what he told us he told them. We need alibi witnesses. I asked him when you submitted report, and when you finally talked to all these people on the 23rd, what was the conclusion that you had come to with respect to whether any of the people you had talked to could provide an alibi. The answer was they could not, they could not then.
Defendant, citing State v. Bankston , 63 N.J. 263, 271 (1973), asserts that this testimony constituted inadmissible hearsay (Evid. R. 63) and as such violated his right to confrontation; that although Soost did not testify as to what these persons had actually said to him, there was an inescapable inference they had told him that defendant was not with them between 9:30 and 10:00 on the night of the murder, thus undermining, if not destroying, his alibi.
Aside from the question of the propriety of the State calling an investigator for defendant to testify to the results of an investigation made on defendant's behalf, Soost's testimony was inadmissible hearsay and carried an implication that the out-of-court witnesses had given information unfavorable to defendant, said implication being further emphasized by the prosecutor's comment.
However, we have reviewed the entire record and are convinced the error was clearly not capable of bringing about an unjust result. R. 2:10-2; State v. Macon , 57 N.J. 325 (1971). Defendant was positively identified by three eyewitnesses to the crime. Moreover, none of defendant's alibi witnesses could testify that they saw him on July 31 between 9:30 and 10 p.m.
On cross-examination of Ms. Troy Ames, the prosecutor, over defendant's objection, asked her ...