State v. Irving

• Decision Date: 30 March 1989
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Larry IRVING, Defendant-Appellant.
• Court: New Jersey Supreme Court

Page 427

114 N.J. 427

555 A.2d 575

STATE of New Jersey, Plaintiff-Respondent, v. Larry IRVING, Defendant-Appellant.

Supreme Court of New Jersey.

Argued Dec. 1, 1987.

Decided March 30, 1989.

Jeffrey B. Steinfeld, Asst. Deputy Public Defender, for defendant-appellant (Alfred A. Slocum, Public Defender, atty.; Jeffrey B. Steinfeld and James B. Flynn, Designated Counsel, on the briefs; Larry Irving submitted a supplemental brief, pro se).

Marc J. Friedman, Asst. Prosecutor, for plaintiff-respondent (Herbert H. Tate, Jr., Essex County Prosecutor, atty.).

The opinion of the Court was delivered by

CLIFFORD, J.

We granted certification, 108 N.J. 175, 528 A.2d 7 (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.

I

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, 498 A.2d 1239 (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.

II

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, 208 A.2d 402 (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, 241 A.2d 3 (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, 241 A.2d 3. 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, 241 A.2d 3.

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...