On certification to the Superior Court, Appellate Division, whose opinion is reported at 392 N.J. Super. 425 (2007).
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
In this appeal, the Court addresses whether the trial court properly refused to allow defendant to give alibi testimony based on his failure to provide timely notice of his alibi to the State under Rule 3:12-2. In addition, the Court considers whether the prosecutor's summation was fair when he expressed his opinion that because the victim was deaf and mute, she had a heightened sensory perception and therefore her identification of defendant was reliable.
On April 26, 2000, S.D., a forty-year old deaf and mute woman was walking home from a friend's house late at night. She was high on heroin at the time. A bicyclist, later identified as defendant Darren L. Bradshaw, approached S.D. from behind, pulled her to the ground, and sexually assaulted her. Bradshaw left and S.D. was able to flag a police car. Officer Ronald Fusco assisted S.D., who was "hysterical" and "covered in dirt," with cuts and bruises to her face. After Fusco realized S.D. was mute, he gave her paper on which she could communicate, and then realized she was also deaf. S.D. related the incident and described her attacker as a black male, five feet six inches, with a stocky build, wearing a yellow and green "mix" jacket and a black hat. The next day, S.D. described her attacker to a sketch artist. Later, she admitted she was high on heroin at the time that she gave that description.
On April 30, 2000, at 3:45 a.m., the police spotted a man (Bradshaw) riding a bicycle in the area near where the assault took place who fit the description of the attacker. Following some questioning and after determining there were no outstanding warrants, Bradshaw was allowed to leave. The next morning, Bradshaw's photograph was included in a photo array. S.D. viewed the array and identified Bradshaw as her attacker. Pursuant to an arrest warrant, the police arrested Bradshaw at his home and seized items of clothing and his bicycle. After waiving his Miranda rights, Bradshaw admitted he had consensual sex with S.D. on a high school field "about a week ago." Bradshaw refused, however, to provide a written statement. DNA tests came back positive.
Shortly before the State presented its final witness, defense counsel informed the trial court that Bradshaw planned to testify. With counsel's permission, the court asked Bradshaw whether he was going to testify that he had an alibi or that he was someplace else when the alleged rape took place. Bradshaw answered that he planned to testify that he was someplace else at the time, and added that he would not testify that he had consensual sex with the victim.
After the prosecutor raised the lack of notice of alibi pursuant to Rule 3:12-2, counsel engaged in a lengthy colloquy with the court regarding the admissibility of Bradshaw's testimony. Defense counsel urged that Bradshaw was not presenting an alibi and that, in any event, alibi notice was only required if the defense planned to present witnesses to confirm defendant's story. As an alternative, defense counsel suggested that the court should allow the testimony to determine whether the State was prejudiced and some accommodation should accordingly be given to the State, or if necessary, whether a mistrial was appropriate.
The State argued that defendant's proffered testimony constituted an alibi and, if admitted, the State would ask to strike it or alternatively would need time to investigate the details of defendant's claims. Following a recess, however, the prosecutor reconsidered and asked the court to wait until defendant testified to determine whether or not to grant the State more time to try to investigate his alibi.
The court concluded that the State would be prejudiced if defendant was permitted to present his proffered testimony. Consequently, it ruled that defendant was precluded from presenting his alibi. Defendant still wished to testify and the court warned him not to testify to his alibi. Defendant testified that he never saw the victim before trial, that he never had sexual intercourse with her, and that he never made a statement to the police that he had consensual intercourse with her.
The jury found defendant guilty of first-degree aggravated assault, second-degree sexual assault, and second-degree robbery. The trial court sentenced defendant to an aggregate sixty years with a twenty-five year parole disqualifier.
The Appellate Division reversed in a published opinion. The panel concluded that it was inappropriate for the prosecutor to comment that because S.D. was deaf and mute, she had a heightened sensory perception that made her identification of defendant more reliable, consequently violating defendant's right to a fair trial. In addition, the panel determined that the trial court infringed upon defendant's right to testify in his own defense by excluding his alibi testimony, and that the exclusion of said testimony was not harmless.
The Supreme Court granted the State's petition for certification.
HELD: The judgment of the Appellate Division is affirmed, but for different reasons. The trial court abused its discretion when it denied defendant from fully presenting his alibi testimony and the preclusion of that testimony constituted harmful error, requiring a new trial; consequently, the Court need not reach the constitutional issue. At any retrial, the prosecutor should neither argue facts that are not in the record, nor expressly or implicitly vouch for the credibility of the victim.
1. Rule 3:12-2 provides that "within 10 days after a written demand by the prosecutor the defendant shall furnish a signed alibi" and "[i]f the information.is not furnished, the court may refuse to allow the party in default to present witnesses at trial as to defendant's absence from or presence at the scene of the alleged offense, or make such other order or grant such adjournment, or delay during trial, as the interest of justice requires." State and federal courts, including the United States Supreme Court, have addressed issues concerning notice-of-alibi rules and the sanction of preclusion. Two cases of particular relevance in this state are State v. Gonzalez and State v. Francis. These two cases established the factors to be considered in determining whether the sanction of exclusion for failure to give notice of an alibi is appropriate: "(1) [the]extent of prejudice to the State; (2) the extent to which the alibi defense [i]s crucial to [the] defendant's case; (3) whether a less severe sanction would preserve the policy of [the alibi rule;] and (4) the feasibility of a trial continuance to permit investigation of the alibi." These cases, however, considered precluding the testimony of alibi witnesses for failure to give proper notice rather than defendant's own alibi testimony, the issue now before the Court. Cases addressing that particular issue focused on "willful misconduct" and the "intentional suppression of alibi evidence to gain tactical advantage." (Pp. 10-19)
2. The Appellate Division in this case rejected the principle of Francis and Gonzalez in favor of a constitutional underpinning. This Court has often stated that it will not reach a constitutional issue when it is not necessary to decide the appeal. Such is the case here. This state's alibi rule expressly provides that in the event a defendant fails to give notice of his or her alibi, the court may preclude the witness from testifying, "or make such other order or grant such adjournment, or delay during trial, as the interest of justice requires." R. 3:12-2(b). The Court interprets the rule to mean that only in the rarest of circumstances should the "interest of justice standard" result in a prohibition of a defendant's own alibi testimony as an appropriate sanction. The Court adopts, as modified, the balancing test for preclusion of a defendant's undisclosed alibi testimony set forth in Francis and Gonzalez, but includes as an additional consideration whether the failure to give notice-of-alibi evidence constituted willful misconduct and intended to gain a tactical advantage. Absent a finding that the factors on balance favor preclusion, the interest of justice standard requires a less severe sanction. Applying those factors to the instant case, the Court is satisfied that this is not that rare circumstance when a defendant's violation of the alibi rule should have resulted in the sanction of preclusion. It was an abuse of discretion for the trial court to deny defendant the opportunity to present his alibi testimony and the preclusion constituted harmful error, requiring a new trial. (Pp. 19-23)
3. Because the Court remands the matter for a new trial, it need not fully address the State's contention that the prosecutor's summation was fair and appropriate. The Court states only that the prosecutor's comments should be based on the evidence in the case and the reasonable inferences from that evidence. At any retrial, the prosecutor should neither argue facts that are not in the record, nor expressly or implicitly vouch for the credibility of the victim. (Pp. 24-25)
The judgment of the Appellate Division is AFFIRMED and the matter is REMANDED for a new trial.
CHIEF JUSTICE RABNER and JUSTICES LONG, LaVECCHIA, ALBIN, RIVERA-SOTO, and HOENS join in JUSTICE WALLACE's opinion.
The opinion of the court was delivered by: Justice Wallace, Jr.
In this appeal, we address whether the trial court properly refused to allow defendant to give alibi testimony based on his failure to provide timely notice of his alibi to the State under Rule 3:12-2. We also consider whether the prosecutor's summation was fair when he expressed his opinion that because the victim was deaf and mute, she had a heightened sensory perception and therefore her identification of defendant was reliable.
The Appellate Division held that the trial court violated defendant's constitutional rights when it declined to allow him to offer alibi testimony and that it was plain error for the prosecutor to essentially vouch for the reliability of the victim's identification. We affirm the judgment of the Appellate Division but for different reasons. We conclude that the trial court abused its discretion when it denied defendant from fully presenting his alibi testimony; consequently, we need not reach the constitutional issue. We also hold that the prosecutor should not have commented on facts outside of the record.
The State presented evidence to show that on the night of April 26, 2000, S.D., a forty-year-old deaf and mute woman was walking home from a friend's house late at night. She was high on heroin at that time. A bicyclist, later identified as defendant, approached S.D. from behind, threw down his bicycle, and pulled her to the ground. Despite S.D.'s screams and attempts to fight defendant off, defendant reached inside S.D.'s pockets, pulled down her pants, and sexually assaulted her. Following the attack, defendant apologized and rode away on his bicycle.
S.D. ran to two nearby houses gesturing for help, but no one assisted her. Finally, she noticed a police car and motioned for it to stop. Officer Ronald Fusco assisted S.D., who was "hysterical" and "covered in dirt," with cuts and bruises to her face. After Fusco realized that S.D. was mute, he gave her some paper on which she could communicate with him. At some point, it became apparent to Fusco that S.D. was also deaf and was reading his lips to understand his questions. S.D. related the incident and described her attacker as a black male, five feet six inches, with a stocky build, wearing a yellow and green "mix" jacket and a black hat. Fusco ...