On certification to the Superior Court, Appellate Division.
For affirmance -- Justices Handler, Pollock, Garibaldi and Stein. For reversal and remandment -- Chief Justice Wilentz, and Justices Clifford and O'Hern. O'Hern, J., dissenting.
[109 NJ Page 381] In this case, the defendants, Raymond Bernard Grice and Albert Crowley, whose appeals were consolidated in the Appellate Division, were convicted after an eight day jury trial of
kidnapping, N.J.S.A. 2C:13-1b(1); aggravated sexual assault (two counts), N.J.S.A. 2C:14-2; robbery, N.J.S.A. 2C:15-1; theft, N.J.S.A. 2C:20-3a; aggravated assault (two counts), N.J.S.A. 2C:12-1b(5)(a) and 1b(1); receiving stolen property, N.J.S.A. 2C:20-7; and attempted sexual assault, N.J.S.A. 2C:14-2. The trial court imposed the same sentences on each defendant: a thirty-year term with a fifteen-year parole ineligibility for the aggravated sexual assaults, a consecutive twenty-year term with a ten-year parole ineligibility for the kidnapping, a concurrent twenty-year term for the robbery and an eighteen-month consecutive term for aggravated assault. The theft, receiving stolen property and attempted sexual assault counts were merged into the robbery count, and Violent Crime Compensation Board penalties were assessed against each defendant in the amount of $2,100.
In an unpublished opinion, the Appellate Division affirmed the convictions of the defendants, but remanded the matter for resentencing for reconsideration in light of State v. Yarbough, 100 N.J. 627 (1985). The trial court has since reimposed the original sentences.
In affirming the convictions, the Appellate Division noted each of several contentions made by the defendants. The issues raised by these contentions related to identification, effective assistance of counsel, fair trial by an impartial jury, admissibility of certain evidence, and sufficiency of evidence, as well as the validity of the sentences. These contentions, as well as an issue raised by the Appellate Division itself concerning trial court comments and the burden of proof, were ultimately rejected as a basis for reversal. We granted defendants' petitions for certification. 107 N.J. 92 (1987). We now affirm defendants' convictions substantially for the reasons expressed in the Appellate Division's opinion.
As noted, there are presented on this appeal several legal issues, the resolution of which turns ultimately upon disputed
facts. An understanding of the record is thus essential in determining the appeal. The facts surrounding the commission of the crimes were adequately summarized by the Appellate Division, viz:
On February 11, 1981, after an evening of bowling, the victim arrived at her home in Belleville at approximately 9:15 p.m. As she turned to leave her garage she felt an arm over her neck and mouth. She turned and saw two "dark faces." She tried to struggle, but she had a weak right arm due to paralysis as a child. She had an opportunity to see the perpetrators as they stood beneath her garage light. She further viewed them when they forced her into the back of her car, when the car passed under a street light and, after parking in a remote area of Branch Brook Park, when they repeatedly raped her, forced her to perform oral sex, attempted to sodomize her, beat her unmercifully and threatened to kill her. The attackers then pushed her from the car, and shortly afterwards she was picked up by a motorist who took her to his apartment from which she called her tenant, a policeman, as well as the Newark and Belleville Police Departments. She was immediately taken to a local hospital in a hysterical condition. She was there found to have a torn retina and two facial fractures. The police took her to the Rape Unit at United Hospitals where treatment was continued. She was administered numerous medications, 25 by her count.
In the interim, off-duty Newark police officer Avalone, who had been working part-time at the United Hospitals' emergency room, was informed of the rape and given a description of the car. When he finished his shift he began searching for the vehicle. At approximately 11:30 p.m. he saw the car on Mt. Prospect Avenue in Belleville, and followed it through the Belleville streets. When it stopped for a red light, he pulled his vehicle alongside and then tried to block the path of the car. He left his car and drew his service revolver ordering the two black males seated in the front seat to "freeze." The car then swerved and tried to hit Avalone, whereupon Avalone fired and saw the passenger fall to the floor of the car. The car then sped away. Avalone testified that he had thought he had "blown his head off."
Approximately 50 minutes later two other police officers saw the vehicle parked in Newark where [defendant] Crowley stated he had left it. The officers staked out the vehicle and, as noted earlier, apprehended defendants after they entered the vehicle.
We concur in the Appellate Division's rejection of the contentions based upon improper or inadequate identifications. The Appellate Division noted that identifications were made by police officer Avalone, as well as the victim herself, immediately after defendants' arrest, which occurred within hours of the
commission of the crimes. The testimony relating to the identification of the defendants as recapitulated by the Appellate Division was:
Avalone was called to the scene of the arrest and immediately identified defendants as the men who had attempted to run him down. Defendants were then taken to headquarters and the victim, although not "enthused" about going to police headquarters and hysterical upon arriving there (she initially refused to look at the suspects), agreed to view them. In the individual show-up procedures (there was no formal line-up), defendants were required to repeat some of the phrases the victim had said were employed by the perpetrators when they had threatened, beat and raped her. After this procedure, the victim identified both defendants.
The Appellate Division correctly reviewed this testimony and the circumstances surrounding the identification under the plain error test of Rule 2:10-2. It carefully applied the standards of Neil v. Biggers, 409 U.S. 188, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972), and concluded, soundly in our view, that the identifications were admissible, viz:
The victim's description to the police of her assailants was limited to their having dark faces and one being tall and the other short (defendants are within one inch of each other's height), and that they were both wearing leather jackets, one brown and the other beige. She stated, however, that she remembered them and could positively identify them if they were shown to her. She neglected to state that Crowley had a mustache and mutton-chop sideburns as well as a scarred face, and that Grice had a black mark in the center of his forehead and extremely large lips. We note, however, that although the victim, while in the initial shock of the encounter, may not have been able to articulate why she could identify her assailants,*fn1 the presence of these distinctive features might have aided in her immediate recognition of defendants. Her in-court identification was also definite and unequivocal.
The Appellate Division further ruled that the identification testimony was not impugned by ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), to which can be added State
v. Fritz, 105 N.J. 42 (1987). Nor did the court below believe there was ineffective assistance of counsel attributable to an alleged conflict of interest as a result of an office-sharing arrangement between defense counsel. Finding support in the analogous case of State v. Bell, 90 N.J. 163 (1982), the court concluded that in this case, given the mutuality of defenses, there was no possibility of conflict.
The Appellate Division declined to consider the contention of defendant Grice that the alibi testimony demonstrated the guilty verdict was against the weight of the evidence. It refused to rule on this contention because defendant had failed to move on this ground for a new trial as required under Rule 2:10-1. Further, the court was not persuaded that its review would be productive because of the "intangibles" embedded in the record and the unlikelihood of being able to find "clearly and convincingly" that "there was a manifest denial of justice under the law" under Rule 3:20-1, so as to mandate a reversal.
We do not disagree with the Appellate Division's reasons for refusing to review the sufficiency of the evidence of guilt in light of defense alibi testimony. Nevertheless, such a review is unavoidable, in our opinion, because of the relevance of this testimony to other claimed errors and the question of whether these other errors had a prejudicial impact sufficient to warrant reversal of the guilty verdicts.
Although the alibi testimony of defendants was quantitatively impressive, it was not intrinsically impregnable. A review of the transcript reveals that the impartiality of Grice's alibi witnesses is highly suspect. Several of Grice's alibi witnesses testified that they were close friends of Grice, and the alibi witnesses were all friends of each other. Furthermore, two of Grice's alibi witnesses were also friends of Crowley. In addition, ...