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State v. Irving

Decided: March 30, 1989.


On certification to the Superior Court, Appellate Division.

For affirmance -- Chief Justice Wilentz, and Justices Clifford, Pollock, Garibaldi, and Stein. For reversal -- Justices Handler and O'Hern. The opinion of the Court was delivered by Clifford, J. Handler, J., dissenting. O'Hern, J., dissenting. Justice Handler joins in this opinion.


We granted certification, 108 N.J. 175 (1987), to review the Appellate Division's resolution of several important issues raised in defendant's appeal from judgments of conviction, after a jury trial, on several criminal charges. Those issues arose from the cross-examination of defendant on the basis of his original notice of alibi, from the prosecutor's comment in summation on defendant's failure to produce an alibi witness, and from a detective's testimony about "information" that led the police to consider defendant a suspect.


At about 8:00 a.m. on September 22, 1983, three armed men, one of whom was later identified as the defendant, Larry Irving, held up Frisco's Luncheonette in Newark. In the course of the robbery defendant shot and wounded the proprietor, Vito Frisco, despite which Frisco and a long-time employee, Clarence Tutt, gave chase but were unable to catch the robbers.

Shortly after the robbery, Detective Colicelli of the Newark Police Department canvassed the neighborhood surrounding Frisco's Luncheonette, "putting the word out" about the crime. He asked that anyone having information communicate with him at the department. Based on information that he obtained, Detective Colicelli included Larry Irving's picture in a six-person photo array, showed it to Frisco and later to Tutt. Both identified Irving as the person who robbed the luncheonette. Frisco added that Irving was the man who shot him. From another array, Frisco and Tutt identified Grady Livingston as defendant's accomplice.

At trial, Irving maintained that he could not have committed the crime because he was on his way to work at the Essex County Public Works Department in Orange, New Jersey. He testified that he left his apartment in Newark a few minutes before 8:00 a.m., the same time that his roommate, Dexter Davis, left for his teaching position. He contended that the drive to work consumed a substantial amount of time, and an investigator testified on defendant's behalf that the trip required twenty-five to twenty-seven minutes. Defendant's employer produced Irving's time-card from work, stamped at 8:16 a.m. Lacking, however, was the testimony of Dexter Davis, the only witness who could support Irving's assertion that he was at his apartment until 8:00 a.m. Not surprisingly, the prosecutor seized on the opportunity to inquire on cross-examination about Davis's absence and to comment on it in her summation.

The jury convicted the defendant, along with Livingston, of first-degree robbery, contrary to N.J.S.A. 2C:15-1; second-degree aggravated assault, contrary to N.J.S.A. 2C:12-1b(1); third-degree unlawful possession of a weapon without a permit, contrary to N.J.S.A. 2C:39-5b; and second-degree unlawful possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4a. On the robbery conviction, to which the Graves Act, N.J.S.A. 2C:43-6(c), was found applicable, the court sentenced defendant to a custodial term of eighteen years with seven years of parole ineligibility. On the aggravated assault conviction, defendant received a consecutive custodial term of seven years with three years of parole ineligibility. The court merged the unlawful weapons possession charge with the robbery and aggravated assault convictions. The remaining weapons possession charge was to be served concurrently with the robbery and assault convictions.

Although the Appellate Division, in an unreported opinion, affirmed the convictions, it agreed with defendant that in keeping with State v. Yarbough, 100 N.J. 627 (1985), cert. den., 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986), the trial

court should have explained its reasons for imposing a consecutive sentence on the aggravated assault conviction. On remand the court explained in detail its reasons for the consecutive terms and imposed the same sentence.


Under Rule 3:11-1 a defendant who intends to rely on an alibi

shall, on written demand of the prosecuting attorney and within 10 days thereafter, furnish a written bill of particulars, signed by him, stating the specific place or places at which he claims to have been at the time of the alleged offense and the names and addresses of the witnesses upon whom he intends to rely to establish such alibi.

In exchange for this information, and on written demand by the defendant, the prosecutor must furnish the names and addresses of witnesses on whom the State intends to rely to establish defendant's presence at the scene of the alleged offense. Ibid. A party may amend the bill of particulars pursuant to a court order. Ibid.

The purpose of a notice of alibi is "to avoid surprise at trial by the sudden introduction of a factual claim [that] cannot be investigated unless the trial is recessed to that end." State v. Garvin, 44 N.J. 268, 272-73 (1965). The sanction for noncompliance with the Rule is that the defaulting party may be precluded from presenting witnesses at trial regarding defendant's absence from or presence at the scene of the alleged offense. R. 3:11-2.

With counsel's assistance, in late February 1984 defendant filed an original notice of alibi containing the names of his co-workers at the Public Works Department. Defendant signed the notice in accordance with Rule 3:11-1. On April 9, 1984, his defense counsel amended the notice by letter to include the name of Dexter Davis, defendant's roommate.

At trial, the prosecutor attempted to cross-examine the defendant on the contents of the original notice of alibi. Defense counsel objected. In a sidebar colloquy, the prosecutor explained that her purpose was two-fold: to indicate to the jury

that no witnesses were called in support of the defendant's alibi, and to bring to the jury's attention the fact that Dexter Davis had not been included in the original notice. Before determining whether such questioning was proper, the court asked the prosecutor to examine Irving on voir dire. Concluding that the prosecutor's questions went to the issue of defendant's credibility, the court permitted the cross-examination to proceed before the jury.

During that examination defendant admitted that he had not provided Davis's name to his counsel until one month after he had offered the names of his co-workers. He agreed that Davis was the only witness who had seen him before 8:00 a.m. on the day of the robbery. On re-direct, defendant explained that because of his incarceration, he was unable to speak to any other witnesses before signing the original notice. However, he was never questioned about why Davis did not appear at trial.

In State v. Angeleri, 51 N.J. 382 (1968), this Court held that a notice-of-alibi requirement did not violate a defendant's right against self-incrimination. The rationale was that the Rule did not compel a defendant to say anything, but rather merely required pretrial disclosure if the defendant planned to assert an alibi. Id. at 384-85. The Court added that "if an alibi should tend to incriminate an accused, it must be because of its inherent infirmity. The Constitution does not protect a defendant from the consequences of a defense he makes, nor assure him a right so to defend as to deny the State a chance to check the truth of his position." Id. at 385.

Two years after Angeleri, the United States Supreme Court was presented with Williams v. Florida, 399 U.S. 78, 90 S. Ct. 1893, 26 L. Ed. 2d 446 (1970), in which defendant challenged Florida's notice-of-alibi rule as violating his right against self-incrimination. The defendant in Williams, after being denied a protective order by the trial court that would excuse him from complying with the State's notice-of-alibi rule, eventually provided

the name of a Mary Scotty as his alibi witness. Id. at 81, 90 S. Ct. at 1895, 26 L. Ed. 2d at 449. The prosecutor subpoenaed Mrs. Scotty and deposed her prior to trial. The testimony of Williams, his wife, and Mrs. Scotty at trial was that the three were together in Mrs. Scotty's apartment at the time of the alleged robbery. Ibid. During Mrs. Scotty's cross-examination, however, she gave testimony that was inconsistent with her deposition. Moreover, rebuttal testimony was provided by a police officer who challenged Mrs. Scotty's location at the time of the alleged robbery. Id. at 81, 90 S. Ct. at 1896, 26 L. Ed. 2d at 449-50.

The Supreme Court affirmed the Florida Supreme Court's determination that the notice-of-alibi rule did not violate defendant's right against self-incrimination by providing information "useful in convicting him." Id. at 82, 90 S. Ct. at 1896, 26 L. Ed. 2d at 450. The Court stated:

Nothing in such a rule requires the defendant to rely on an alibi or prevents him from abandoning the defense; these matters are left to his unfettered choice. That choice must be made, but the pressures that bear on his pretrial decision are of the same nature as those that would induce him to call alibi witnesses at the trial: the force of historical fact beyond both his and the State's control and the strength of the State's case built on these facts. Response to that kind of pressure by offering evidence or testimony is not compelled self-incrimination transgressing the Fifth and Fourteenth Amendments.

[ Id. at 84-85, 90 S. Ct. at 1897-98, 26 L. Ed. 2d at 451-52 (emphasis added) (footnote omitted).]

Thus, "[h]owever 'testimonial' or 'incriminating' the alibi defense proves to be, it cannot be considered 'compelled' within the meaning of the Fifth and Fourteenth Amendments." Id. at 84, 90 S. Ct. at 1897, 26 L. Ed. 2d at 451; see United States v. Washington, 431 U.S. 181, 187, 97 S. Ct. 1814, 1818, 52 L. Ed. 2d 238, 245 (1977) ("Absent some officially coerced self-accusation, the Fifth Amendment privilege is not violated by even the most damning admissions."). The decision whether to file the notice, according to the Court in Williams, was no different from a defendant's decision to testify or to remain silent -- a dilemma that has "never been thought an invasion of the privilege

against compelled self-incrimination." Williams, supra, 399 U.S. at 84-85, 90 S. Ct. at 1897-98, 26 L. Ed. 2d at 451. Justice O'Hern's assertion that the only justification for the notice-of-alibi rule is as a " non-testimonial event," post at 465, is therefore wide of the mark. The justification for the rule, under Williams, is that it does not compel self-incriminating testimony.

It has been argued that the Williams analysis is inapplicable to this context, where "litigational use" is made of the notice. See Justice Handler's dissent, post at 453. He urges an entirely different analysis under the fifth amendment, one that would hold that when a defendant is cross-examined on the content of the notice of alibi for impeachment purposes, the defendant's testimony is "compelled" and therefore self-incriminating. We fail to see how cross-examination concerning the content of a notice-of-alibi is so entirely different from the cross-examination of a witness whose name was derived from the content of the notice itself as to transgress the boundaries of the fifth and fourteenth amendments.

Borrowing from an interesting, if somewhat theoretical, law-review article, Justice Handler's dissent attempts to explain the alleged constitutional violation by classifying this case as a form of "indirect or conditional compulsion," which occurs "when a burden is placed on the otherwise unconditional right to remain silent, such that the right is no longer considered truly 'voluntary.'" Post at 451-452. He admits, however, that the circumstances of this case do not rise to the level of a "pristine compulsion." Even assuming we were to accept this analytical model -- which we do not -- the same classification could be attached to Williams. Artificial constructs aside, we think that the United States Supreme Court has made clear that not every burden on the exercise of fifth-amendment rights is unconstitutional. See McGautha v. California, 402 U.S. 183, 213, 91 S. Ct. 1454, 1470, 28 L. Ed. 2d 711, 729 (1971) ("The threshold question is whether compelling the election [between self-incrimination and the right to remain silent] impairs to an

of the policies behind the rights involved.") We conclude that the use of the notice of alibi in the instant case has not appreciably impaired the policies underlying defendant's right to remain silent or his right against self-incrimination.

Inasmuch as the notice is not self-incriminating, the question then becomes whether the contents of the notice may be used as a basis for testing a defendant's credibility on cross-examination. That question focuses on whether the notice is sufficiently testimonial in character. Defendant contends that it is not. He urges the Court to view the document as a formal pleading that was not intended as an affirmative statement. The argument is unconvincing because the notice contains highly relevant information amassed from statements volunteered by the defendant in preparation for an alibi defense. Although defense counsel assisted in the act of recording the plea of alibi, counsel could not have developed the information contained therein independently. Moreover, the characterization of the notice of alibi as a formal pleading does not advance the defendant's position inasmuch as factual assertions in pleadings or in superseded pleadings may be used against the parties who made the assertions. Stoelting v. Hauck, 32 N.J. 87, 107 (1960). (We do not suggest, however, that an omitted name in a notice of alibi can be viewed as an admission against interest. Evid. R. 63. We cite Stoelting merely to point out the logical flaw in the defendant's analysis.)

The testimonial nature of the notice of alibi is clear from the defendant's signature on the document. This signature serves as a certification of the truth of the contents of the notice and as an acknowledgement that the defendant voluntarily participated in the preparation of his alibi defense. The importance of defendant's signature cannot be understated, for under Rule 3:11-1 the notice is void without it.

Defendant suggests that it is inherently unfair to allow cross-examination regarding a document that he was required

to file before his defense counsel had an opportunity to complete his investigation of the case. To this argument there are two responses. First, the trial court can balance any prejudice that the defendant would suffer as a result of the precipitant nature of the plea against the probative value of the information pursuant to an Evidence Rule 4 analysis, as was done in this case. Second, because the notice is capable of being amended prior to trial, defendant may alter the list to accord with his investigation. True, defendant may have to explain any contradictions in the original notice, but the jury is entitled to determine where the truth lies. If legitimate doubt is cast, that is the risk that a defendant assumes by asserting an alibi defense.

It must be emphasized that the information contained in the notice was not offered for substantive purposes nor as part of the State's main case. See also Williams, supra, 399 U.S. at 86 n. 17, 90 S. Ct. at 1898 n. 17, 26 L. Ed. 2d at 452 n. 17 (suggesting that "testimonial" disclosure protected by the fifth amendment "includes only statements relating to the historical facts of the crime," not statements relating to trial strategy); Conn.Super.Ct.R. § 772 (limiting State's use of evidence discovered through defendant to cross-examination or rebuttal); cf., e.g., Gilbert v. California, 388 U.S. 263, 87 S. Ct. 1951, 18 L. Ed. 2d 1178 (1967) (handwriting exemplars admitted as part of the State's case). Moreover, the information in the notice was unrelated to any element of the offense. See, e.g., Schmerber v. California, 384 U.S. 757, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966) (compulsory blood sample used to establish essential element of charge against defendant). In State v. Miller, 67 N.J. 229 (1975), this Court held that a statement taken without full Miranda warnings, see Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), although not admissible on the State's case-in-chief, may be used to impeach defendant's credibility as a witness "should the defendant take the witness stand and give testimony which is at variance with what was said in the statement to the police." Id. at 233 (citing

Harris v. New York, 401 U.S. 222, 91 S. Ct. 643, 28 L. Ed. 2d 1 (1971)). We see in Miller an analogy to this case, where the only purpose for the use of the notice of alibi was to impeach Irving's credibility.

Our analysis of the issue does not end, however, with a determination that the original notice of alibi was a testimonial statement. To be admissible, the statement must come within an exception to the hearsay rule. Evid.R. 63. Under Evidence Rule 63(1) "[a] statement is admissible if previously made by a person who is a witness at a hearing, provided it would have been admissible if made by him while testifying and the statement: (a) is inconsistent with his testimony at the hearing * * *." The inconsistency exists in this case between defendant's trial testimony, in which Dexter Davis is admitted to be the key to the alibi defense, and the contents of the original notice of alibi, which fails to include Davis's name.

Defendant argues that there is no inconsistency inasmuch as the notice-of-alibi form in Essex County states: "the following witnesses may or may not be called to testify." Because the notice does not specifically state that the witnesses will testify, he urges, it is not inconsistent with defendant's trial testimony. However, Rule 3:11-1 unequivocally requires a defendant to furnish a list of witnesses "upon whom he [the defendant] intends to rely." The focus of the Rule is the defendant's intent to rely on the specified persons, not whether they are in fact called. If that intent materially changes during the preparation of the alibi, that inconsistency should be revealed.

Our holding today does not alter the decision in State v. Gross, 216 N.J. Super. 92 (App.Div.), certif. den., 108 N.J. 194 (1987). In Gross the defendant did not testify at trial. The prosecutor nevertheless had the notice of alibi admitted into evidence and argued in summation that the reason a witness named in the notice did not appear was to avoid perjuring herself. The court held that

[w]here, as here, a defendant does not suggest at trial that a person named in his alibi notice has any relevant information in support of the defense, the notice cannot fairly be used to imply that defendant had untruthfully made such a claim or that the person thus named would testify unfavorably to defendant if called.

[216 N.J. Super. at 96.]

A footnote appended to this sentence stated, "We need not and do not determine whether an alibi notice may be used by the State as substantive or impeachment evidence in any other setting." Id. at 96 n. 1. Unlike the situation in Gross, Irving testified that Dexter Davis was in the apartment with him on September 22, and that the two left for work at approximately the same time. There was no unfairness in allowing cross-examination on the information because the clear import of Irving's testimony was that Davis could supply the critical link in his alibi and thereby bolster his credibility.

Although in State v. Garvin, supra, 44 N.J. 268, the Court stated that the purpose of the notice of alibi was to "avoid surprise at trial," it did not limit the use of the notice of alibi to pretrial discovery purposes. Unlike Wisconsin, which statutorily prohibits cross-examination on the contents of the notice of alibi, Wis.Stat.Ann. § 971.23(8) (West 1985), New Jersey has not placed any restraints on the use of the notice beyond a standard Evidence Rule 4 analysis. The information contained in a notice of alibi is no different from facts asserted in a motion to suppress or dismiss, or in an affidavit filed with such motions: they are statements by the defendant and subject to cross-examination if inconsistent with his trial testimony.

Contrary to the dissent's charge, the Court's decision today does not allow "the deposing in pretrial of all defendants who plan to assert a defense in order to allow the prosecution to prepare against surprises and to improve the truth-finding process." Post at 466. Our holding is a narrow one: we determine only that when a voluntary decision has been made to assert an alibi defense and to file a notice of alibi, the information contained in that notice may be subject to cross-examination,

subject, as always, to the court's discretionary control of the scope of the cross-examination, see, e.g., State v. Petillo, 61 N.J. 165, 169 (1972), and provided a trial court has first found that the prejudicial effect of the information does not outweigh its probative value.


We turn to the issue of whether it was plain error for the trial court to allow the prosecutor to comment in her summation to the jury on defendant's failure to produce Dexter Davis as an alibi witness. More specifically, we must determine whether the failure to produce Davis was an appropriate subject of comment, and whether the prosecutor followed the proper procedures to allow the drawing of an adverse inference, as set forth in State v. Clawans, 38 N.J. 162 (1962). Although we conclude that the prosecutor's actions offended the procedural standard set forth in Clawans, the violation did not rise to the level of plain error. R. 2:10-1.

During her summation, without notice to anyone, the prosecutor stated:

He (the defendant) told you there's somebody who could corroborate that, Dexter Davis left the house just before Larry Irving did. Larry Irving left the house a few minutes after 8:00. Dexter Davis could say I left the house at 8:00 and Larry Irving was still there. Larry Irving saw Dexter Davis Tuesday. Where is Dexter Davis, the only person who could corroborate that was never brought before you, why not? Ask yourselves.

In Clawans the Court explained that

[f]or an inference to be drawn from the nonproduction of a witness it must appear that the person was within the power of the party to produce and that his testimony would have been superior to that already utilized in respect to the fact to be proved.

[38 N.J. at 171 (citations omitted).]

The opinion pointed out obvious departures from this two-part standard. The inference was not proper if, for example, the witness was a person "whose testimony would be cumulative, unimportant or inferior to what had been already utilized." Ibid. (citations omitted).

Of equal importance in Clawans was the procedure to be followed in requesting a jury charge for adverse inference. The concern was to provide the party accused of non-production an opportunity either to call the witness or to explain his failure to do so. This concern could be met if

the party seeking to obtain a charge encompassing such an inference [were to] advise the trial judge and counsel out of the presence of the jury, at the close of his opponent's case, of his intent to so request and demonstrat[e] the names or classes of available persons not called and the reasons for the conclusion that they have superior knowledge of the facts.

[38 N.J. at 172.]

We applied Clawans to the context of statements made on summation regarding an adverse inference in State v. Carter, 91 N.J. 86 (1982). Again, we urged that parties request the court to make the inference out of the presence of the jury and at the close of the opponent's case. We stated: "It is only after all the particulars are disclosed that the trial court may properly determine whether the inference should be urged in summation." Id. at 128; see also State v. Driker, 214 N.J. Super. 467, 472 (App.Div.1987) (prosecutor's reference in summation to defendant's failure to call witness held proper where prosecutor requested Clawans charge at conclusion of defendant's case).

Defendant asserts that under Clawans the prosecutor's statement was impermissible because Davis's testimony would have been merely cumulative, as well as inferior to the testimony given by defendant. But the suggestion is plainly wrong. Only Dexter Davis could corroborate defendant's alibi that he did not leave for work until approximately 8:00 a.m. and that it was therefore impossible for him to commit the crime and arrive at work by 8:16 a.m. Although we cannot say that Davis would have been a disinterested ...

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