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HACKETT v. MULCAHY

July 31, 1980

MIMS HACKETT, Petitioner,
v.
ROBERT E. MULCAHY, and THE ATTORNEY GENERAL OF THE STATE OF NEW JERSEY, Respondents.



The opinion of the court was delivered by: STERN

I. FACTS AND PROCEDURAL HISTORY

 In late August 1975 Mims Hackett's home in Orange, New Jersey, was burglarized. Hackett asked a number of people in his neighborhood if they had seen anyone attempting to sell items taken from his house. On August 29, eighteen year-old Larry Moss, apparently one of the people Hackett had questioned, contacted Orange police and claimed that Hackett and two other men had abducted him from a street corner in Orange, assaulted him, and left him unconscious about a mile away. Petitioner was charged with four crimes in connection with this incident: atrocious assault and battery, kidnapping, and two counts of threatening to take the life of another, in violation of N.J.Rev.Stat. §§ 2A:90-1, 2A:118-1, and 2A:113-8. Indictment No. 3137-75 (May 4, 1976).

 Petitioner pleaded not guilty to these charges on May 24, 1976. At that time, pursuant to N.J. Court Rule 3:11-1, the State furnished him with a bill of particulars requesting notice of any alibi defense. Rule 3:11-1 requires the defendant to answer in ten days, giving the location where he claimed to be at the time of the crime and the names and addresses of the witnesses who would testify that he was there. *fn2" Twenty-five days later, on June 18, petitioner's counsel sent the State a letter indicating that the defense would present an alibi defense, and on July 7, counsel sent another letter listing the names of five potential alibi witnesses. Defense counsel's notice of alibi was not only untimely; it was also deficient, in that it failed to include the place where petitioner claimed to be when the crime occurred. The State at no time objected to this defect, and it was never corrected.

 Trial commenced four months later, on November 1, 1976, without any motion by the prosecution to preclude an alibi defense. In its opening statement the State alleged that Hackett, after his home had been burglarized, decided "to take the law into his own hands," Tr. of Nov. 1, at 41, and, with two confederates, kidnapped one of the people who he believed was involved in the burglary. Defense counsel, in his opening statement, did not dispute that Hackett's home had been broken into or that the kidnapping had occurred. He told the jury, however, that Hackett was at home at the time of the kidnapping, and that he would call a witness to support Hackett's alibi. Tr. of Nov. 1, at 46. The State made no objection to the defendant's promise to call alibi witnesses on his behalf. Indeed, the prosecutor expressed indifference as to whether such witnesses testified or not.

 The State relied primarily on the testimony of the victim and two other witnesses to the abduction. The victim, Larry Moss, testified that he was talking with his brother Anthony, cousin Brian Watkins, and several other friends at about 4:00 P.M. on August 29, 1975, when two men grabbed him and dragged him into the back seat of a parked station wagon. Anthony Moss and Watkins attempted to rescue him but turned away when a third man, occupying the driver's seat, threatened them with a pistol. *fn3" The car then sped away. Larry Moss identified petitioner as the driver, and testified that he recognized petitioner as the same man who had approached him a few days earlier, told him about the burglary of his house, and asked if anyone had tried to sell him a television or calculator.

 Moss testified that petitioner left the car after it had gone a few blocks, intending to report it stolen, and agreed to meet the two other men at 4:00 P.M. outside a bar in Newark. Petitioner drove a second car to the meeting spot, not arriving until about 5:30. Petitioner, Moss, and the other two men then entered the second car. Moss stated that petitioner, presumably seeking information about the burglary of his house, told Moss: "You are going to tell me what I want to know or I am going to kill you." Tr. of Nov. 3, at 15. Moss "finally decided to give a couple names . . . so no harm wouldn't (sic) come to me." Id. He further testified that, as the men traveled from Newark into East Orange, petitioner struck him in the head with a gun, knocking him unconscious. He woke up lying on a street in East Orange, about a mile from where he was abducted.

 Anthony Moss and Brian Watkins also identified petitioner as the driver of the car. *fn4" A fourth witness, Michael Daly, saw only two men and could not identify petitioner as one of them. However, Daly reported the license number of the automobile to the police; a check revealed that the car was registered to petitioner. *fn5"

 Detective John Farley of the Orange Police Department gave the only other evidence against petitioner. Farley testified that when petitioner's counsel, Peter Vitanzo, *fn6" arrived at police headquarters on the night of the kidnapping, Farley informed him that petitioner was charged with kidnapping. Farley read the kidnapping statute to Vitanzo in petitioner's presence. When Farley reached the portion of the statute dealing with moving an individual from one point to another point in the state, Vitanzo asked how far the victim in this case had been transported, and was told that the victim had been picked up in Orange and dropped off in East Orange, about a mile away. Farley testified that petitioner then interrupted, declaring: "It was no mile, we dropped him off maybe a couple of blocks into East Orange." Tr. of Nov. 4, at 114.

 The first defense witness was Vitanzo, who was called to rebut Farley's testimony. Vitanzo testified that he was indeed present when Farley advised petitioner of the charges but that Hackett had made no such statement, instead remaining silent as Vitanzo had instructed. On cross-examination, in an effort to undermine Vitanzo's credibility, the prosecution brought out the fact that he had prepared the defective notice of alibi and questioned him extensively on it, thereby further reinforcing the jury's perceptions that the defense would rely on alibi.

 Petitioner took the stand and admitted that his house had been burglarized in late August 1975 and that he had questioned people in the neighborhood about it. *fn7" He also admitted that his car may have been used in the abduction. He testified that on August 28 he had loaned his car to a man named Clarence Williams, whom he asked to "look around in Orange in general and just see and hear what (he could) find out" about the burglary. Tr. of Nov. 5, at 83. Petitioner learned of Williams through a friend who described Williams as a "street guy" who might be able to find out who committed the burglary. Tr. of Nov. 5, at 82. Petitioner said that he had asked Williams to leave the car at a nearby service station on August 29. At about 4:30 P.M., he testified, he called the station. When he was told that his car was not there he reported it stolen. Petitioner was unable to locate Williams to testify at trial.

 Petitioner testified that he had been at home when the abduction allegedly occurred. He further stated that two people, Jefferson Brown and William Blake, dropped by at various times that afternoon. In support of his alibi defense, petitioner called Brown to testify. *fn8" Then, for the first time in the history of these proceedings, the state objected because of the defective notice of alibi provided by petitioner's counsel. The trial judge, despite the references to alibi testimony which the jury had heard during petitioner's opening statement, petitioner's testimony, and Vitanzo's cross-examination, sustained the objection and indicated that he would preclude any further alibi testimony pursuant to N.J. Court Rule 3:11-2. *fn9"

 On November 10, 1976, the jury convicted petitioner of simple assault and battery and of kidnapping. *fn10" He was sentenced to a term of thirty to thirty-one years on the kidnapping count, the minimum term permitted by statute, *fn11" and a six-month concurrent term on the simple assault and battery conviction.

 Shortly after sentencing, two of the State's three identification witnesses Larry and Anthony Moss recanted their trial testimony. *fn12" Petitioner moved for a new trial, and the trial court considered the recantations at an evidentiary hearing conducted in August 1977. At the hearing Larry Moss testified that Detective Farley planned to frame petitioner for a kidnapping. Farley asked Moss to submit to an abduction and identify petitioner as a participant. Anthony Moss testified that he could not identify petitioner as one of the kidnappers and that his trial testimony was the result of his brother's influence. The trial judge ...


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