On certification to the Superior Court, Appellate Division.
For reversal -- Chief Justice Hughes and Justices Mountain, Sullivan, Clifford and Schreiber. For affirmance -- Justices Pashman and Handler. The opinion of the court was delivered by Sullivan, J. Pashman, J., dissenting. Justice Handler joins in this opinion.
This appeal by the State, on certification granted by this Court, 75 N.J. 603 (1977), involves, primarily, the question of whether the prosecutor's summation comments to the jury concerning defendant's failure to call his wife as a witness in support of his alibi testimony was a violation of defendant's marital privilege under Evid. R. 23(2) not to have his spouse testify. Other issues raised by defendant on his appeal will also be considered.
The Appellate Division, in an unreported opinion, reversed defendant's conviction of kidnapping, rape and sodomy on
the ground that defendant had a privilege under Evid. R. 23(2) not to have his spouse testify and, he having exercised that privilege, the prosecution was prohibited by the express provisions of Evid. R. 39 from commenting thereon and suggesting that an adverse inference could be drawn therefrom. The resultant prejudice to defendant, the Appellate Division held, required a reversal of defendant's conviction and a new trial. We disagree and reverse the Appellate Division ruling.
The State's proofs showed the following:
On October 19, 1974, at about 12:15 A.M., the victim was accosted as she was returning to her apartment in Elizabeth after she had parked her car. Her assailant approached her from the rear, put his arm around her, pressed an unidentified hard object into her side and ordered her back into her car. He then made her drive to a housing project in Newark some 10 to 15 minutes away, forced her into the back of the car where he raped her, sodomized her and forced her to perform fellatio. She was then made to drive back to Elizabeth where the man got out of the car about a block and a half from her home. Her ordeal extended over a period of about two and one-half hours.
Defendant, who lived with his wife and child in the same area of Elizabeth as the victim, was not identified until almost four months later when the victim picked him out of a lineup at police headquarters. She also made a positive identification of him at trial.
Defendant testified in his own defense that on the night in question he had been at work at his regular place of employment on the 3:00 P.M. to 11:30 P.M. shift. He punched out on the time clock shortly after his shift ended, washed up and got a ride home from a co-worker. He estimated that he arrived home at about 12:15 to 12:20 A.M. where his wife, who was awake, had supper ready for him. He said that he did not go out of the house again that night and, after talking with his wife for a while, watched television
and then went to bed. During his testimony he identified his wife as being present in court.
Defendant's employment record showed that he had worked on the night in question until 11:30 P.M. His co-worker also testified that after work he drove defendant home, arriving there about 12:10 or 12:15 A.M. Since the criminal acts took place during the period of time defendant said he was at home with his wife, she was the only person who could vouch for the truth of his testimony. Nevertheless, defendant rested his case without calling her to the stand.
In his summation, the prosecutor referred to the fact that defendant's wife was present in the courtroom during the trial, and then said:
Is it not reasonable that she could be called upon by the defense to corroborate the so-called alibi? Why hasn't she taken the stand? And I submit that it's reasonable for you to infer that the nonproduction of the defendant's wife is due to the fact that if produced she would offer testimony adverse to what he said.
Defense counsel had objected to any reference to the nonproduction of defendant's wife as a witness. However, the trial judge ruled that under the circumstances it was proper for the State to comment on it.
The jury found defendant guilty of kidnapping, rape and sodomy. He was sentenced to life imprisonment for the kidnapping to be served consecutive to a prison sentence defendant was then serving. For rape, he was sentenced to 25 to 30 years in State Prison to be served consecutive to the sentence for kidnapping. For sodomy, defendant was sentenced to 18 to ...