State v. Garvin
| Citation | 44 N.J. 268,208 A.2d 402 |
| Decision Date | 22 March 1965 |
| Docket Number | No. A--57,A--57 |
| Parties | STATE of New Jersey, Plaintiff-Respondent, v. William F. GARVIN, Defendant-Appellant. |
| Court | United States State Supreme Court (New Jersey) |
Andrew L. Kaufman, Newark, for appellant.
John G. Graham, Asst. Pros., for respondent (C. William Caruso, Asst. Pros., on the brief, Brendan T. Byrne, Essex County Pros., attorney).
The opinion of the court was delivered by
Defendant was convicted of larceny in violation of N.J.S. 2A:119--2, N.J.S.A. He appeals from the conviction and from orders denying two post-conviction applications. We certified the appeals before argument in the Appellate Division.
The offense charged involves a familiar pattern of larceny by trick, committed in the City of Newark. The State contended that defendant posed as a stranger with considerable cash in pocket and, assisted by an accomplice who pretended to have just happened along, led the victim to withdraw the balance of his savings account, thereby to persuade defendant that banks are places of safe deposit. The victim's cash, totaling $405, was purportedly wrapped with defendant's cash in a handkerchief and left with the victim for interim holding. There had been a switch; the handkerchief held newspaper.
Defendant denied all, saying he was never in the City of Newark and claiming that while he did not know precisely where he was at the time of the offense, he was somewhere in Philadelphia, where he lived.
There were but two witnesses at the trial, the victim and the defendant. Defendant attacks the verdict as against the weight of the evidence. He stresses some strangeness in the testimony of the victim, but this is not surprising of one who could be swindled so easily. We are not persuaded that the jury's verdict is infected with mistake, passion, prejudice or partiality. R.R. 1:5--1(a); State v. Forcella, 35 N.J. 168, 175, 171 A.2d 649 (1961), cert. denied 369 U.S. 866, 82 S.Ct. 1035, 8 L.Ed.2d 86 (1962).
Defendant complains of the failure of the trial court to charge specially on the subject of alibi. There was neither a request to charge nor an objection to the failure to charge on the subject, but defendant, through counsel assigned to represent him on this appeal, asserts the trial court's omission was sufficiently grievous to be available on appeal as 'plain error.' R.R. 1:5--1(a); State v. Williams, 39 N.J. 471, 485, 189 A.2d 193 (1963), cert. denied 374 U.S. 855, 83 S.Ct. 1924, 10 L.Ed.2d 1075 (1963). He relies upon State v. Searles, 82 N.J.Super. 210, 197 A.2d 384 (App.Div.1964), where it was held to be plain error for the trial court not to have charged on the subject of alibi on its own motion.
Alibi is not a 'separate' defense. It is part and parcel of a direct denial of the State's charge whenever the defendant's physical presence at a given time and place is a critical part of the prosecution's case. R.R. 3:5--9(a) provides:
The rule so provides, not on the thesis that alibi is a separate defense as distinguished from a denial of a part of the case the State must prove, but rather to avoid surprise at trial by the sudden introduction of a factual claim which cannot be investigated unless the trial is recessed to that end.
The subject of alibi has commanded an inordinate amount of judicial consideration. Perhaps the reason is that at one time some courts thought of alibi as a separate defense and charged the jury that the defendant had the burden of proof with respect to it. See Annotations, 118 A.L.R. 1303, 1304 (1939); 29 A.L.R. 1127, 1139 (1924); 124 A.L.R. 471, 474 (1940). That error crept into the charge in Sherlock v. State, 30 N.J.L. 31, 37 A. 435 (Sup.Ct.1897); State v. MacQueen, 69 N.J.L. 522, 531, 55 A. 1006 (Sup.Ct.1903); State v. Parks, 96 N.J.L. 360, 115 A. 305 (Sup.Ct.1921), and was thought to be implicit in the charge given in State v. DeGeralmo, 83 N.J.L. 135, 138, 83 A. 643 (Sup.Ct.1912). But it is now perfectly clear in our State that alibi is merely a direct denial of the State's charge; and that being so, it is not apparent why such testimony should be dealt with differently from any other direct denial of the State's allegations.
Indeed the very discussion of alibi as something apart from a direct denial of the truth of the State's case tends to obscure its role and to suggest a defendant has some special responsibility with respect to it. See, for example, the cumbersome explanation to the jury which passed muster in State v. Ing Kee, 7 N.J.Misc. 676, 147 A. 49 (Sup.Ct.1929), and again on further review in 106 N.J.L. 336, 150 A. 358 (E. & A. 1930). Cf. State v. Thomas, 11 N.J.Misc. 157, 158, 165 A. 101 (Sup.Ct.1933), affirmed o.b. 111 N.J.L. 239, 168 A. 396 (E. & A.1933).
Moreover, so long as alibi is thought to command special treatment, there will be unrewarding questions as to what constitutes an alibi and the sufficiency of evidence to raise the issue. Cf. State v. Mucci, 25 N.J. 423, 430--432, 136 A.2d 761 (1957); State v. Smith, 43 N.J. 67, 80--81, 202 A.2d 669 (1964), cert. denied 379 U.S. 1005, 85 S.Ct. 731, 13 L.Ed.2d 706 (1965); State v. Driver, 38 N.J. 255, 290, 183 A.2d 655 (1962). For example, how precise must a defendant's claim be? R.R. 3:5--9(a), quoted above, requires a bill of particulars 'stating the specific place or places at which the defendant 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.' The defendant in our case, in response to the State's demand under this rule, replied that he could not comply because of 'the immense variation in the time and place of the alleged crime.' In other words, he was unable to pinpoint his presence at the time of the crime at a place so distant that he could not physically have been the culprit. He could say only that he was somewhere in Philadelphia and not in Newark. Is that an alibi? Cf. Commonwealth v. McQueen, 178 Pa.Super. 38, 112 A.2d 820 (Super.Ct.1955). Is it any more or less an alibi if a defendant says he was not at the scene of the crime when it occurred but hasn't the faintest idea where he was?
It seems to us that all of this is quite unnecessary. There is no need to speak of alibi in such separate terms, and indeed to do so will more likely obscure the case than clarify it. The important thing is to make it plain to jurors that to convict they must be satisfied upon a consideration of all of the evidence that guilt has been established beyond a reasonable doubt. If a defendant's factual claim is laid beside the State's and the jury understands that a reasonable doubt may arise out of the defense testimony as well as the State's, the jury has the issue in plain, unconfusing terms. If events at the trial should be thought to suggest to the jury that the defendant has the burden of proving he could not physically have committed the crime, then of course the trial court should dissipate that danger by telling the jury that the defendant does not have the burden of proving where he was at the critical time and that evidence offered on that score is to be considered with all the proof in deciding whether there is a reasonable doubt as to guilt.
In the case before us, there was no room for misunderstanding. There was no intimation that defendant had to prove he was in Philadelphia or that he had the burden to create a reasonable doubt or that a reasonable doubt could not arise from his testimony. The trial court made it plain that the burden of proof was upon the State to establish guilt beyond a reasonable doubt upon the entire case. The factual issue was simple, and it was left to the jury in clear terms.
Defendant lays the charge given in Searles, supra, 82 N.J.Super. 210, 197 A.2d 384, alongside the charge in the case on hand, to make the point that they are essentially the same and that since the charge in Searles was so inadequate as to be 'plain error,' it should follow the charge here was equally deficient. In that case the Appellate Division thought '(t)he jury was thus left free to assume that the burden of proving alibi was on defendant' (82 N.J.Super., at p. 214, 197 A.2d at p. 386). Whether that estimate was warranted by the total record in Searles we do not know since the case was not brought to us for review. We know that no such danger is evident in the record before us. Hence we cannot find plain error, and we add that elsewhere it is usually held not to be error to omit to charge specially upon alibi in the absence of a request. Annotation, 118 A.L.R. 1303, 1304 (1939); Cf. State v. DeGeralmo, supra, 83 N.J.L. 135, 83 A. 643.
Defendant asserts a number of grounds arising out of proof of his prior convictions, elicited on cross-examination of him. There was no objection at any point, and the complaints are now tendered for the first time, as 'plain error.' This cross-examination was authorized by N.J.S. 2A:81--12, N.J.S.A.:
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