State v. AcetaState v. Aceta
Tried to a jury, defendant was convicted of two counts of attempted murder, contrary to
On this appeal from his conviction and sentence, defendant advances the following contentions:
I. THE DEFENDANT‘S PRIVILEGE AGAINST SELF-INCRIMINATION WAS IMPERMISSIBLY INVADED AS A RESULT OF CROSS-EXAMINATION AS TO THE DEFENDANT‘S FAILURE TO INFORM THE POLICE OR ANYONE ELSE OF HIS ALIBI DEFENSE UNTIL SHORTLY PRIOR TO TRIAL.
II. THE PROSECUTOR‘S SUMMATION EXCEEDED THE BOUNDS OF PROPRIETY.
III. THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE BY IMPOSING CONSECUTIVE TERMS WITH MAXIMUM PAROLE DISQUALIFIERS.
A complete recitation of the facts giving rise to defendant‘s indictment and conviction for the cited offenses is not necessary to our consideration of the issues raised on this appeal. It is sufficient to note that the State‘s proofs permitted the jury to find that on October 30, 1983, “Mischief Night,” two officers of the South Amboy Police Deрartment were shot by defendant, masquerading as a cowboy, as one of the officers attempted to arrest defendant on some outstanding bench warrants for traffic
A gun subsequently found behind one of the buildings in the apartment complex where defendant was found was determined to be the weapon which had discharged the bullet taken frоm the shoulder of one of the wounded officers. Some live shells for the gun were also found in the area.
Testifying in his own behalf, defendant stated that while he lived in South Amboy, during the time period in question he also maintained an apartment in Newburgh, New York, where he was employed by Conrail. On Saturday, October 29, he had worked from 4:00 p.m. to midnight, and as he prepared to leave in his van he encountered mechanical difficulties involving overheating and a weak battery. He pulled into the railroad yard to check the trouble and eventually was questioned by one of the railroad policemen. Upon learning that defendant‘s license had been suspended for a previous drunk driving violation, the police advised him against driving. Accordingly, defendant
In cross-examining defendant concerning his defense of being at his brother‘s apartment at the time of the crime, the prosecutor focused upon defendant‘s failure to have disclosed this defense prior to the preparation of a Notice of Alibi on March 8, 1985.1 After having the Notice of Alibi marked for identification2 and establishing that defendant was arrested in October 1983, the prosecutor continued:
Q. How many times did you come to court in 1984? You were arraigned in January, isn‘t that right? January 11? A. I don‘t remember the date.
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A. You mean arraignment. I was arraigned October 31st.
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Q. Did you tell anybody from the State that it couldn‘t be you because you spent the night in your brother‘s apartment?
A. No, and no one asked.
Q. No one asked. How about when you came to court for the pretrial hearings that were conducted in March and May and July and were you telling anybody from the State it couldn‘t be me, you got the wrong guy. I spent the night at my brother‘s apartment?
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THE COURT: Any time that you came to court, did you ever tell anybody, either on behalf of the Court or State, that you were at your brother‘s apartment?
THE WITNESS: What do you mean? Like my lawyer?
THE COURT: Your lawyer, the Court, anybody.
THE WITNESS: I told them I wasn‘t guilty.
Q. That‘s not my question.
THE COURT: Did you ever tell them you were at your brother‘s?
THE WITNESS: Yes, I told them.
Q. Who did you tell?
A. I told Travis [Travis Francis, defendant‘s attorney]. He came down — I first seen him in September of 1984. He was with Jim Heaton. I told him.
Q. This is September of 1984. When you came, when we had the court hearings in January, you weren‘t present but this wasn‘t signed until March of 1985.
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Q. Mr. Aceta, the sum and substance of this is that since October 30th, 1983 you have been facing extremely serious charges, isn‘t that correct?
A. Yes.
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Q. Yet, all through 1984 did anyone interpose that on your behalf, this alibi that you couldn‘t be guilty because you weren‘t at the scene of the crime when the two officers were shot? Did that ever happen throughout any time in 1983 or 1984?
A. I don‘t know how to say this. We talked about a case, defenses — repeat that question.
THE COURT: The question is at any time did, at any time before, couple of weeks ago did you ever sign a statement about your alibi? THE WITNESS: No.
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Q. The fact of the matter is that prior to your coming to court on March 8, 1985, the very eve of trial, that nobody from the State ever heard about this alibi defense because you had never signed the alibi notice, isn‘t that right?
A. Yes. Wait. Yeah.
Q. So, for a year and a half you just sat on this alibi; isn‘t that right?
A. No.
The State‘s offer of the Notice of Alibi into evidence was denied as the trial judge considered its admission might create in the minds of the jurors an “inference or a conclusion that there was а duty upon the defendant ... in the connection with alibi defense to sustain some level of proof.” Similar reasoning prompted the judge to preclude the prosecutor from commenting in his summation as to those named as witnesses in the Notice of Alibi. However, comment was permitted on the timing of the Notice as legitimate argument on credibility or recent fabrication.
In the closing argument, the prosecutor commented in the following manner:
Well, next comes the eleventh hour alibi defense. Nоw, you know in this case the defendant was charged the morning after the shooting in shooting two police officers and you know because the Judge told you that one of the things as proper, I am looking for his things. I am entitled to by the Rules and one of those things is notice of alibi and the Judge told you that I asked the defense for alibi in this case a number of months ago. As a matter of fact, I looked through my records. I asked for it in February of 1984. That is over a year ago and it is also clear from the record in this casе, I didn‘t get it until March 8th, 1985. And then, I am provided this alibi where the defense says, you know, Prosecutor, I have been in court a lot of times, but I am now telling you you got it all wrong. I didn‘t shoot these cops. I wasn‘t even in South Amboy. I spent the entire night in my brother‘s apartment in Old Bridge. Now, and he testifies to that effect. He says I am with my brother, Danny, and I am with Karen, his wife, and their children. Later on they go and I am all alone by myself and what does he present in support of that? Well, he brings in Kathy Pilot to tell about this telephone call that she has supposеdly made to Danny‘s apartment.
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Now, you have heard Mr. Francis comment upon the defendant. He‘d like to take the stand. Well, ladies and gentlemen, if you consider yourself a baseball game, it is now the bottom of the ninth. There is two outs and he is way behind. [If] he is going to beat this charge. He‘d better get to the plate and start hitting a lot of homeruns because he got a lot of crown [sic], lot of runs to make up in this case, so now he is going to get up and he going to tell you he wants you to hear his side of the story, this side of the stоry which he forgot or neglected or somehow was unable to tell the State for the seventeen months he has had these various serious charges over his head, but now he is going to tell you this side twice....
Following the prosecutor‘s cross-examination of defendant and also upon the completion of the State‘s summation, defense counsel moved for a mistrial because of the questions and comments directed to defendant‘s failure to mention his alibi defense prior to March 8, 1985. In denying the first aрplication, the trial judge concluded that “[t]he idea of cross examination for late supplied alibies as a matter of recent fabrication is well recognized law.” This rationale was relied upon by the judge in denying defendant‘s motion following the prosecutor‘s summation. At that time, the judge observed:
In regard to the ruling on the alibi I again indicated that on the issue of recent fabrication that while [there] could be no comment on whether or not other witnesses were brought forward and indeed I wouldn‘t even let the notice in simply because it gave rise to the inference that the burden shifted — the characterization and the efforts to see the jury to make a judgment of credibility on the defendant‘s testimony, I think is within the ruling and within the law as I understand it.
In contending that harmful error was committed by the trial judge in permitting the cross-examination of defendant with respect to his failure to inform the State of his alibi defense until March 8, 1985, three days before trial, and in allowing the prosecutor to comment on this topic in his summation, defendant argues that such cross-examination and comment “impermissibly invaded the defendant‘s privilege against self-incrimination, denying to him his right to a fair trial.” While countering with the argument that defendant‘s right to remain silent was not violated by the prosecutor‘s trial tactics, the State claims, nevertheless, that any error which might have thus been created was harmless beyond a reasonable doubt. Relying upon State v. Macon, 57 N.J. 325, 338 (1971), it is urged that
Although defendant‘s noncompliance with the rule did not give rise to any sanctions, the trial judge deemed it permissible for the prosecutor to pursue this subject by way of cross-examination and argument because of the implication of recent fabrication on the part of defendant. We are constrained to conclude that such determination was contrary to the conclusion in State v. Deatore, 70 N.J. 100 (1976), that the prosecution may not comment upon or pose questions to a defendant concerning
In Deatore, the reversal of defendant‘s conviction was upheld because of the improper questioning of defendant concerning his failure to have disclosed his alibi defense at the time of his arrest or later when he learned of the charges against him. There, when asked on cross-examination whether it was not true that he had refused to voice any exculpatory information to the police when arrested, defendant replied, “nobody asked me.” Such questioning was deemed improper as being violative of defendant‘s common law privilege against self-incrimination and right to remain silent. Id. 70 N.J. at 114. Not only is a suspect or an accused under no duty to give a statement to the police at or about the time of his arrest, but on the contrary is privileged to say nothing. Ibid. As no inference can be drawn from the exercise of the privilege to remain silent nor may comment thereon be made to the jury, it follows “that a defendant is under no obligation to vоlunteer to the authorities at the first opportunity the exculpatory story he later tells at trial and cannot be penalized directly or indirectly if he does not.” Id. at 115. The privilege of silence is substantially eroded when used either as substantive proof of guilt or in an attempt to impeach a defendant‘s exculpatory testimony through cross-examination. Id. at 115-116. As stated by the court, the rule is that
a defendant is under no obligation to volunteer to the authorities at the first opportunity the exculpatory story he later tells at his trial and cannot be
penalized directly or indirectly if he does not. While the situation in [State v.] Ripa [45 N.J. 199, (1965)] was that of the State offering evidence of a refusal to answer as substantive proof of guilty on its own case, we think the result should be no different when it is presented by way of attempted impeachment of a defendant‘s exculpatory testimony through cross-examination, and we so hold as a matter of state law. The privilege of silence is substantially eroded and reliance upon it unjustifiably penalized in either situation. [70 N.J. at 115-116]
The use of a defendant‘s post-arrest silence for the purpose of impeaching an exculpatory defense was recognized in Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976) as having federal constitutional implications. That the discrepancy between an exculpatory story at trial and silence at time of arrest gave rise to an inference of recent fabrication was deemed insufficient reason to permit cross-examination for impeachment purposes. Such use of a defendant‘s silence at the timе of arrest and after receiving Miranda3 warnings was deemed violative of the Fourteenth Amendment guaranty of due process. Id. at 619, 96 S.Ct. at 2245. The court reasoned:
Despite the importance of cross-examination, we have concluded that the Miranda decision compels rejection of the State‘s position.
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Silence in the wake of these warnings may be nothing more than the arrestee‘s exercise of these Miranda rights. Thus, every post-arrest silence is insolubly ambiguous because of what the State is required to advise the person arrested. [Citations omitted.] Moreover, while it is true that the Miranda warnings contain no express assurance that silence will carry no penalty, such assurance is implicit to any person who receives the warnings. In such circumstances, it would be fundamentally unfair and a deprivation of due process to allow the arrested person‘s silence to be used to impeach an explanation subsequently offered at trial. [426 U.S. at 617-618, 96 S.Ct. at 2244-45]
While the due process infringement found by the Doyle court was based upon the unfairness of using a post-arrest silencе against the defendant in the wake of the Miranda warnings, our State law precludes the use of a defendant‘s silence irrespective of whether Miranda warnings were given or understood.
It is clear from the record in the present case the defеndant‘s privilege against self-incrimination was violated by the prosecutor‘s persistent inquiry on cross-examination concerning the defendant‘s failure to have previously asserted his alibi defense.4 Defendant‘s right was further infringed upon by reference in the prosecutor‘s summation to the “eleventh hour alibi defense” and the analogizing of defendant‘s trial testimony to the “hitting [of] a lot of homeruns” during the last inning of a baseball game in which defendant had a “lot of runs to make up in this case,” and was doing so by testifying as to his “sidе of the story which he forgot or neglected or somehow was unable to tell the State for the seventeen months he has had these various serious charges over his head....” The trial court‘s
Our recognition of the violation of defendant‘s common law and constitutional rights renders it unnecessary for us to consider the remaining appellate contentions urged by defendant.
The judgment of conviction is reversed and the case is remanded to the Superior Court, Law Division, Middlesex County, for a new trial.
Reversed.
A.M. STEIN, J.S.C., t/a (concurring):
I reach the same result, but for somewhat different reasons than those advanсed in the majority opinion. In my view, the prosecutor had a right to cross-examine defendant about what was accurately portrayed on summation as an eleventh-hour alibi defense. The question was relevant for the purpose of showing that this alibi was a recent fabrication.
It is beyond dispute that reversible error was committed when the prosecutor was permitted to ask defendant on cross-examination why, at any time after his arrest, he never told anybody that he was at his brother‘s apartment in Old Bridge
The trial judge enhanced the error by asking the defendant whether he had ever told anybody, including his lawyer, that he was at his brother‘s apartment, miles from the crime scene. Not only was this line of questioning prohibited under Deatore, it also was an obvious, impermissible invasion оf the attorney-client privilege.
There are reasons why silence at or near the time of arrest may not only be golden, but eminently prudent. As Chief Justice Hughes pointed out in Deatore, 70 N.J. at 117):
... There are many reasons why a person in such a situation may choose to say nothing. A likely explanation is conscious reliance on his right to remain silent. Another is a general feeling that it is better not to say anything at all when surrounded by police or officials in a fearful atmosphere. Still another, in the case of an alibi, might be the simple lack of immediate recollection of the defendant as to his whereabouts at the time of the occurrence.
For reasons already expressed by the majority and myself, the right to remain silent immediately following arrest is inviolate. That right, whether viewed as common law in origin or constitutional in dimension, has little, if anything, to do with the inordinately late assertion of an alibi defense.
As the majority points out at 28,
We should not confuse the right to remain silent with the obligation to provide alibi information within a reasonable time after it is demanded by the State. In February 1984, defendant was served with a bill of particulars, pursuant to
Obviously, the late filing of an alibi bill of particulars should not automatically permit the prosecutor to assert the claim of recent fabrication. Each situation should be dealt with on a case-by-case basis. A prosecutor who wishes to attack defendant‘s late alibi on the grounds that it is of recent fabrication should so advise the trial judge out of the jury‘s presence. The dispute as to what, if anything, is admissible, can then be resolved upon an offer of proof.