For affirmance -- Chief Justice Hughes, Justices Mountain, Sullivan, Clifford and Schreiber and Judge Conford. For reversal and remandment -- Justice Pashman. The opinion of the Court was delivered by Hughes, C.J. Pashman, J. (dissenting). Sullivan and Schreiber, JJ., concurring in the result.
This appeal involves the same basic question decided this day in State v. Deatore, 70 N.J. 100 (1976), i.e., the propriety of bringing out on cross-examination of a defendant, who testifies at trial to an exculpatory story, that he had not told that story, but had remained silent, at or near the time of his arrest, such line of questioning seeking to create the inference that the exculpatory testimony was untrue.
The defendant Alston was convicted, along with Oliver Hines, of breaking and entering a dwelling in Paterson and larceny of a revolver and cash therefrom. A third participant was never identified or apprehended and was indicted as "John Doe." Hines did not appeal. Defendant's sole ground of appeal was the allowance of cross-examination along the lines outlined above. The majority of the Appellate Division affirmed the conviction, holding the questioning proper under State v. Burt, 107 N.J. Super. 390 (App. Div. 1969), aff'd o.b., 59 N.J. 156 (1971), cert. den., 404 U.S. 1047, 92 S. Ct. 728, 30 L. Ed. 2d 735 (1972), in the light of the lack of proof that defendant had been given Miranda warnings following his arrest. The concurring judge questioned the applicability of Burt, but felt that any trial error in this respect was harmless beyond a reasonable doubt.
We granted defendant's petition for certification, 64 N.J. 309 (1973), and the case was argued with Deatore.*fn1
The question involved arose in this testimonial setting. Neighbors saw three men approach the front door of a house whose occupants they knew to be at work. When the bell was not answered, they attempted to force the door. That effort proving unsuccessful, they were seen to go to the rear of the house (where a break-in was later discovered) and a few minutes later to return to the front and hurriedly leave the vicinity. The neighbors called the police, who responded promptly, and gave a description of the men based on general appearance and kind and color of outer clothing worn.
The police testimony was that three men answering the general description were seen walking along a street in the area. One fled immediately on sight of the police and was never located (he was "John Doe"). The other two, the defendant and Hines, also ran as an officer approached and were captured after a considerable chase through residential backyards. They were taken back to the scene of the crime and identified by the neighbors. (The admissibility of the identification was established by a Wade*fn2 hearing at the trial.) None of the loot was discovered on a search of their persons. The revolver was later found discarded some distance away.
Defendant took the stand as his only witness and gave a version of his capture quite different from that testified to by the police officers. He said he was walking alone through this residential area en route from his brother's home in a housing project, where he had visited, to his sister's home in another part of the city. A police car came
up to him and the officer said he was under arrest, whereupon he fled because, he stated, he knew he was wanted for violation of probation imposed on a previous conviction for atrocious assault and battery. He denied knowing Hines or being at the robbed house. (Hines did not testify.) On cross-examination, he was asked: "You didn't say this to the police officers when you were caught did you?" Defense counsel moved for a mistrial on the ground that the privilege against self-incrimination was thereby violated: "He never has to say anything to anyone." The trial court agreed with this statement but, after extensive argument outside the presence of the jury, held the line of questioning proper on the authority of Burt. The prosecutor then asked: "Why didn't you tell the police officer at the time where you were and where you were going?", to which defendant replied: "They didn't ask me."
The whole incident occupied only a few lines, as far as the jury was concerned, in the transcript of a trial lasting more than three days and the subject matter was not referred to thereafter in summation or in any other way.
While under the rule settled today by our opinion in Deatore, the above recited questions were improper, we agree with the concurring judge below that the error was harmless beyond a reasonable doubt and cannot be said to have influenced the verdict. We reach this conclusion for three reasons. First, the questioning was extremely limited and was never again referred to during trial; second, any impression it may have left with ...