On certification to the Superior Court, Appellate Division, whose opinion is reported at 252 N.J. Super. 622 (1991).
O'hern, Wilentz, Clifford, Handler, Pollock, Garibaldi, Stein
The opinion of the court was delivered by
This appeal concerns the standards that govern the cross-examination of a witness about recent fabrication of alibi testimony. The specific question is whether the pretrial failure of the witness to volunteer the information to State authorities or investigators allows a jury to draw an inference of recent fabrication. We hold that if a witness appears to know of the charges and would naturally be expected to have come forward with the alibi testimony, the witness may be cross-examined about those circumstances of non-disclosure. In this case, we agree with the Appellate Division that once a notice of alibi had been furnished by defendant's attorney, thereby making the witness available to questioning by prosecution investigators, there is, from the date of notice of alibi to trial, no longer an inconsistency from which to infer fabrication unless the witness refuses to discuss the matter with the prosecution after the notice of alibi.
On October 24, 1988, around 8:30 p.m., Jose Silva allegedly attempted to steal, with a handgun, a parked car from a man. The car-jacking was unsuccessful. About one hour later and in the same vicinity, Jose Silva, allegedly with a handgun, stole a parked car from a woman. The police arrested Silva on October 27, 1988. The record indicates that on December 12, 1988, Silva posted bail. The grand jury's indictments on December 22, 1988, partially superseded by an indictment on November 30, 1989, consisted of five counts: two counts of armed robbery or attempted armed robbery, contrary to N.J.S.A. 2C:15-1; two counts of possession of a handgun for an unlawful purpose, contrary to N.J.S.A. 2C:39-4a; and one count of possession of a handgun without a permit, contrary to N.J.S.A. 2C:39-5b.
On March 14, 1989, defendant filed a notice of alibi, alerting the State that his sister and her husband were alibi witnesses. Despite her availability, the State did not interview the sister until March 20, 1990, the day defendant's trial commenced. At trial, defendant's sister testified that her brother was with her at her home during the hours in question. She was cross-examined about her failure to inform the police or prosecutor about the details of the alibi before the March 20th interview. Defense counsel objected to this line of questioning and after a sidebar the prosecutor continued to question the sister on her failure to inform the police. During closing arguments, defense counsel argued that the sister would not have been believed if she had informed the police; the State argued that the alibi had been orchestrated conveniently, emphasizing the sister's failure to inform the police or prosecutor of the alibi. Again, defense counsel objected and after a sidebar the prosecutor continued his comments. Defense counsel requested a jury instruction that an alibi witness has no obligation to come forward. The court agreed; however, the court later failed to instruct the jury that an alibi witness has no duty to inform the police or prosecutor.
The jury convicted defendant of the two armed robbery counts and the two counts of possession of a handgun for an unlawful purpose. The court dismissed the count charging defendant with possession of a handgun without a permit. The court sentenced defendant on each of the robbery counts to fifteen years with a minimum parole eligibility term of seven years and on each of the unlawful possession counts to seven years with a minimum parole eligibility term of three-and-a-half years, all terms to run concurrently.
The Appellate Division reversed the convictions, 252 N.J. Super. 622 (1991). The court ruled that the
prosecution may cross-examine an alibi witness on the subject of pretrial silence (and may comment in summation), but only after demonstrating to the trial Judge's satisfaction that the witness was aware of the nature of the charges pending against the defendant, had reason to know he had exculpatory information, had a reasonable motive to act to exonerate the defendant, was familiar with the means to make the information available to law enforcement authorities, and was not silent as the result of the advice of defense counsel.
The court noted that when a defendant furnishes an alibi notice such action "terminates any arguable unnaturalness of an alibi witness's failure to come forward with his information." Id. at 631. Thus, the court held "that the prosecution may not question or comment on an alibi witness's pretrial silence during any period after filing of defendant's alibi notice containing the witness's name and address." Ibid. The Concurring opinion would go further and allow only in the rarest of circumstances, that an alibi witness be ...