July 3, 1978, was denied on September 19, 1978.
On February 22, 1979, the Governor of New Jersey commuted petitioner's sentence to a minimum of two and a maximum of three years. Petitioner was paroled on July 17, 1979. On October 19, 1978, petitioner filed this petition for a Writ of Habeas Corpus,
contending, inter alia, that his constitutional right to due process was violated by the exclusion of alibi evidence under the circumstances of this case.
II. EXHAUSTION OF REMEDIES
Petitioner is required to exhaust available state remedies prior to filing a petition for a Writ of Habeas Corpus. 28 U.S.C. § 2254(b). The test for exhaustion is "whether the "method of analysis' asserted in the federal courts was readily available to the state court." Bisaccia v. Attorney General of the State of New Jersey, 623 F.2d 307, 310 (3rd Cir. 1980); see also Zicarelli v. Gray, 543 F.2d 466, 472 (3rd Cir. 1976) (the exhaustion requirement "ensure(s) that the state system was granted a fair opportunity to confront arguments that are propounded to the federal habeas courts"). Petitioner need not present the identical legal arguments to the state and federal courts, but he must provide the state court with "an opportunity to apply controlling legal principles to the facts bearing upon (his) constitutional claim." Picard v. Connor, 404 U.S. 270, 277, 92 S. Ct. 509, 513, 30 L. Ed. 2d 438 (1971).
Respondent contends that the issues raised in the petition, including petitioner's contention that the exclusion of potential alibi testimony violated his federal constitutional rights, have not been fairly presented to the state courts. We disagree. Although neither the Appellate Division opinion confirming petitioner's conviction nor the New Jersey Supreme Court's order denying certification discusses any claim arising out of the United States Constitution, and the briefs filed in the state court proceedings by both petitioner and the State do not couch any argument in federal constitutional terms,
the "method of analysis" asserted here was readily available to the state court.
Petitioner's appeal raised four grounds for reversal: (1) the trial court erred in denying his motion for a new trial; (2) the trial court erred in excluding the testimony of potential alibi witnesses; (3) the trial court erred in permitting prejudicial references by the prosecutor during cross-examination of petitioner and in summation; and (4) the 30-year minimum sentence on the kidnapping conviction was "overpunitive." The briefs filed in the Appellate Division by both parties dealt extensively with whether preclusion was proper under the New Jersey Court Rules and governing case law. Petitioner contended that the purpose of the notice of alibi rule would be served by lesser sanctions
and that the remedy for failure to comply with Rule 3:11-1, although in the discretion of the trial judge, must be a remedy "the interest of justice requires." The opinion issued by the Appellate Division upheld the trial judge's preclusion sanction as an appropriate exercise of discretion under N.J. Court Rule 3:11-2.
In his petition for certification Hackett contended that: "the refusal of the trial judge to allow the testimony of an alibi witness requires that in the interest of justice, the Supreme Court review the entire matter." Petitioner argued that the trial court erred in excluding potential alibi testimony because "the trial judge's actions were an abuse of discretion and was (sic) not consistent with the interest of justice," citing Rule 3:11-2. The petition urged that certification should be granted because "the cumulative effect" of the trial court's errors, including its exclusion of alibi witnesses, violated "principles of fundamental fairness."
The method of analysis used by the state courts to determine, in the first instance, the appropriateness of the preclusion sanction, and, on appeal, whether preclusion constituted an abuse of discretion, is the same method this Court must use to evaluate the constitutional claim. The state courts considered the nature of the defect in the notice of alibi, the circumstances under which the prosecution objected to the testimony of potential alibi witnesses, and the reasons for the trial judge's imposition of the preclusion sanction, and then held that the preclusion sanction did not constitute an abuse of discretion. It is inconceivable that in finding no "abuse of discretion" they did not implicitly hold that preclusion did not violate petitioner's right to due process of law.
The exercise of our jurisdiction therefore will not impede on the principles of comity which underlie the exhaustion doctrine. See Picard v. Connor, supra, 404 U.S. at 275, 92 S. Ct. at 512. Accordingly, we hold that, although petitioner failed to place a federal label on claims presented to the state courts, he did fully raise the issue of the fairness, under standards of due process, of precluding his witnesses. Therefore, he has exhausted available state remedies as required by section 2254(b).
III. THE MERITS
The right to present witnesses in one's defense is a fundamental right guaranteed by the Sixth Amendment and made applicable to the states by the Due Process Clause of the Fourteenth Amendment. Chambers v. Mississippi, 410 U.S. 284, 302, 93 S. Ct. 1038, 1049, 35 L. Ed. 2d 297 (1973); Washington v. Texas, 388 U.S. 14, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (1967). Any improper abridgement of so fundamental a right the very right to defend oneself converts the trial into a charade. As the Supreme Court stated in Washington v. Texas :
The right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense, the right to present the defendant's version of the facts as well as the prosecution's to the jury so it may decide where the truth lies. Just as an accused has the right to confront the prosecution's witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense. This right is a fundamental element of due process of law.
388 U.S. at 19, 87 S. Ct. at 1923.
Although the state may not prohibit the exercise of this right, it clearly may condition it on reasonable rules designed to further legitimate state interests. The Supreme Court has recognized that the State has a legitimate interest in preventing a criminal defendant from concocting a last-minute alibi,
and has upheld the constitutionality of a notice of alibi statute which provides the defendant with reciprocal discovery rights. Wardius v. Oregon, 412 U.S. 470, 93 S. Ct. 2208, 37 L. Ed. 2d 82 (1973); Williams v. Florida, 399 U.S. 78, 90 S. Ct. 1893, 26 L. Ed. 2d 446 (1970). It has expressly reserved, however, the question presented here whether the enforcement of such a statute by the exclusion of testimony violates the defendant's right to compulsory process. Wardius v. Oregon, supra, 412 U.S. at 472 n.4, 93 S. Ct. at 2210 n.4; Williams v. Florida, supra, 399 U.S. at 83 n.14, 90 S. Ct. at 1896 n.14.
It is clear that a defendant may waive even a fundamental right such as the right to compulsory process. However, such a waiver may not be implied lightly. The test for determining whether there has been an intelligent waiver was set forth in Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 1023, 82 L. Ed. 1461 (1938): "A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege." Mere technical failure to comply does not necessarily constitute a waiver. Even wilful noncompliance by an attorney which may not be attributed to the client does not constitute a waiver by the defendant.
Where a defendant has done nothing more than employ counsel entrusting his freedom into the hands of one licensed by the court as competent to represent him neither the error nor the misconduct of counsel constitutes a waiver by the defendant of his fundamental rights.
The testimony of a defense witness may not be precluded because of defense counsel's failure to comply with court rules, unless the record reveals some complicity on the part of the defendant. For example, in United States v. Barron, 575 F.2d 752 (9th Cir. 1978), the court upheld the preclusion of potential alibi testimony based on the defendant's intentional failure to disclose the existence of his witnesses until after the start of trial. In that case the defendant refused to confide in his court-appointed attorney, who had expressly asked him for the names of alibi witnesses. See also Ronson v. Commissioner of Correction, 604 F.2d 176 (2nd Cir. 1979) (preclusion of witnesses who would support insanity defense not justified absent showing of extreme prejudice by the prosecution); United States v. White, 583 F.2d 899 (6th Cir. 1978) (preclusion of alibi witness upheld where defendant did not disclose existence of witness until close of evidence because, he contended, he had not been able to locate the witness previously); United States v. Boatwright, 425 F. Supp. 747 (E.D.Pa.1977) (trial judge precluded testimony of alibi witness where defendant did not disclose existence of witness, despite appropriate requests by counsel, until five days after the start of trial).
United States v. Nobles, 422 U.S. 225, 95 S. Ct. 2160, 45 L. Ed. 2d 141 (1975), a case upon which respondent heavily relies, is inapposite here. In that case defendant hired an investigator to interview the prosecution's identification witness. Defendant used a statement furnished by the investigator to impeach the credibility of the identification witness. The trial judge did not require that the defendant turn the statement over to the prosecution at that time, but noted that the statement would have to be turned over if the investigator were to testify. When the investigator was called by the defendant to testify, the judge reiterated that defendant must permit the prosecution to examine the investigator's prior statement for potential inconsistencies, because it bore directly on the central issue at trial the credibility of the identification witness. Defendant, aware of his choice between nondisclosure of the statement and testimony of the investigator, elected not to disclose the statement. The Supreme Court held that the trial court could require the defendant to make such an election, stating:
The Sixth Amendment does not confer the right to present testimony free from the legitimate demands of the adversarial system; one cannot invoke the Sixth Amendment as a justification for presenting what might have been a half-truth.
Id. at 241, 95 S. Ct. at 2171.
On the basis of this record the Court can find no complicity by the petitioner in the highly technical failure of his lawyer to comply with all the provisions of the notice of alibi rule. Nor do we find any other fact which would permit us to infer that petitioner had waived his fundamental right to call witnesses in his favor.
At petitioner's arraignment on May 24, 1976, the State requested notice of any alibi on which petitioner intended to rely. Petitioner's counsel made no response until June 18, 1976, when he advised the State by letter that petitioner intended to rely on an alibi defense. No further information was requested. On July 7, 1976, however, petitioner's counsel provided the State with the names of five potential alibi witnesses. The list included Jefferson Brown and William Blake, who petitioner contends were with him at the time the abduction occurred; Clarence Williams, to whom petitioner contends he loaned his car; Willie Campbell, who referred petitioner to Williams; and Booker Campbell, who apparently was also aware that petitioner had been referred to Clarence Williams. The addresses of each of those individuals except Clarence Williams was also provided. The location of petitioner at the time of the abduction was not provided. Trial commenced on November 1, almost four months after petitioner provided the State with the names of potential alibi witnesses. In his opening statement petitioner's counsel promised the jury that he would call witnesses to show that petitioner was at his home when the crime was allegedly committed. The State did not object. After counsel delivered their opening statements, a discussion occurred out of the presence of the jury concerning potential alibi witnesses. Defense counsel again noted his intention to call at least two alibi witnesses. Not only did the prosecutor fail to object, he stated instead that he was "not too concerned with alibi witnesses." He also noted on the record that he had had the names of the alibi witnesses since July but had not talked to them. He requested only that the missing address of Clarence Williams be supplied; defense counsel replied that he himself had been unable to locate Williams. Tr. of Nov. 1, at 68-71.
On the third day of the trial, Peter Vitanzo, petitioner's pretrial counsel and the individual responsible for the defective notice, testified for petitioner as a fact witness.
During cross-examination of Vitanzo, the prosecution brought to the jury's attention the fact that Vitanzo had supplied the State with the names of five witnesses who were to provide an alibi for Hackett. Vitanzo was asked to give the names of the five individuals, and he did so.
The prosecutor repeatedly confronted Vitanzo with the defective notice, suggesting that the attorney had failed to provide the names on time or in a proper manner. He was even permitted to question Vitanzo on conversations between Vitanzo and his client in an effort to suggest that petitioner had aided counsel's noncompliance. However, the prosecutor succeeded only in showing that the notice of the alibi defense was given sixteen days late, that neither the prosecutor, defense counsel, nor the judge were in agreement as to what the rule required, and that petitioner himself had shown no disrespect for any court rule or order.
Indeed, at the end of this testimony, the prosecutor again made no objection to the introduction of the alibi defense.
The next morning there was yet another discussion of the alibi-notice rule and the prosecutor simply acknowledged receipt of the notice. Later, when defense counsel called the first name on the defective alibi notice, William Campbell, as a witness, the prosecutor called for a side bar conference, and, for the first time, objected to the notice of alibi. Petitioner's counsel explained that Campbell would not testify about Hackett's alibi, and so the prosecutor withdrew his objection. Tr. of Nov. 5, at 63-64.
The defense was not permitted to call any other alibi witness. When the defense called Jefferson Brown, the court refused to permit him to testify. In response to defense counsel's request to amend the defective alibi notice, the court stated:
I refuse to let you use the witness and I refuse to let you use the place where he was at. I won't let you call any witnesses by reason of your failure to supply the name, the location and address. Now you don't wait until the morning of trial or the afternoon of trial. . . . There is a letter in July, you sent names, never sent him where. I refuse to let you use the witness.