State v. Silva

• Decision Date: 25 March 1993
• Citation: 621 A.2d 17,131 N.J. 438
• Parties: STATE of New Jersey, Plaintiff-Appellant, v. Jose SILVA, Defendant-Respondent.
• Court: New Jersey Supreme Court

Page 438

131 N.J. 438

621 A.2d 17

STATE of New Jersey, Plaintiff-Appellant, v. Jose SILVA, Defendant-Respondent.

Supreme Court of New Jersey.

Argued Nov. 9, 1992.

Decided March 25, 1993.

Mark Paul Cronin, Deputy Atty. Gen., for appellant (Robert J. Del Tufo, Atty. Gen. of New Jersey, atty.).

Timothy A. Shafer, Designated Counsel, for respondent (Zulima V. Farber, Public Defender, atty.).

The opinion of the Court was delivered by

O'HERN, J.

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.

I

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 The grand jury's indictments on December 22, 1988, partially superseded by an indictment on November 30, 1989, consisted of five counts: two counts of armed robbery or attempted armed robbery, contrary to N.J.S.A. 2C:15-1; two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- 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, 600 A.2d 506 (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.

[Id. at 629-30, 600 A.2d 506.]

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, 600 A.2d 506. 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 questioned on his or her failure to inform the police. Id. at 634, 600 A.2d 506 (Stein, J.A.D., concurring). We granted certification, 130 N.J. 9, 611 A.2d 649 (1992).

II

Cross-examination is "the 'greatest legal engine ever invented for the discovery of truth.' " California v. Green, 399 U.S. 149, 158, 90 S.Ct. 1930, 1935, 26 L.Ed.2d 489, 497 (1970) (quoting 5 Wigmore on Evidence § 1367, at 32 (Chadbourn rev. 1974)). Courts have a broad discretion in determining the scope of cross-examination. State v. Siegler, 12 N.J. 520, 526-27, 97 A.2d 469 (1953). An attorney may not, however, cross-examine a witness about any subject. The law places limits on cross-examination for reasons of both practicality and logic. See 1 McCormick on Evidence, § 49, at 182 (Strong 4th ed. 1992) (stating that "consideration of confusion of the issues, misleading the jury, undue consumption of time, and unfair prejudice" restricts cross-examination through the use of extrinsic evidence). Thus, the law recognizes five acceptable modes of attack upon the credibility of a witness: (1) prior inconsistent statements, (2) partiality, (3) defect of character, (4) defect of capacity of the witness to observe, remember, or recount matters, and (5) proof by others that material facts are otherwise than as testified to by the witness under attack. Id., § 33, at 111-12. This case involves impeachment of an alibi witness through prior inconsistent statements.

III

New Jersey Rules of Evidence provide that prior inconsistent statements may be used to impeach the credibility of a witness. See Evidence Rule 20; Evidence Rule 22. "[A]n alibi witness, like any other witness, may be cross-examined with a view to demonstrating the improbability or even fabrication of his testimony." State v. Bryant, 202 Conn. 676, 523 A.2d 451, 466 (Conn.1987). When a witness's prior statement "fails to mention a material circumstance presently testified to, which it would have been natural to mention in the prior statement, the prior statement is sufficiently inconsistent" to be used for impeachment purposes. 1 McCormick on Evidence, supra, § 34, at 115. "As a preliminary matter, however, the court must be persuaded that the statements are indeed inconsistent." United States v. Hale, 422 U.S. 171, 176, 95 S.Ct. 2133, 2136, 45 L.Ed.2d 99, 104 (1975) (citing 3A Wigmore on Evidence, § 1040 (Chadbourn rev. 1970)). In the case of silence, what is the statement that is inconsistent with the trial testimony?

It seems to be assumed that a person accused of a crime will volunteer evidence of innocence. Hence, when a person does not do so, it is thought natural to expect that we may question on that subject. As the Supreme Court stated:

In most circumstances silence is so ambiguous that it is of little probative force. * * * Silence gains more probative weight where it persists in the face of accusation, since it is assumed in such circumstances that the accused would be more likely than not to dispute an untrue accusation.

[Hale, supra, 422 U.S. at 176, 95 S.Ct. at 2136, 45 L.Ed.2d at 104.]

It is only the constitutional privilege against self-incrimination that guarantees the accused that no inference may be drawn from the exercise of the right to remain silent. Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976).

We have concluded that once a defendant chooses to take the stand in his or her own defense pre-arrest silence has a bearing on the credibility of the defendant. State v. Brown & Emm, 118 N.J. 595, 613, 573 A.2d 886 (1990). In this case we stated that

[i]f it can be inferred by the fact-finder that a reasonable person situated as the defendant, prior to arrest, would naturally have come forward and mentioned his or her involvement in the criminal episode, particularly when this is assessed against the defendant's apparent exculpatory testimony, then the failure to have done so has sufficient probative worth bearing on defendant's credibility for purposes of impeachment.

[Id. at 613-14, 573 A.2d 886.]

This case tests the measure of the soundness of the inference by a fact-finder that a reasonable alibi witness would naturally come forward to mention his or her exculpatory evidence and that the failure to have done so has sufficient probative worth bearing on the alibi witness's credibility for purposes of impeachment. We know that there is no duty to come forward with an alibi. Bryant, supra, 523 A.2d at 465; Commonwealth v. Brown, 11 Mass.App.Ct. 288, 416 N.E.2d 218, 224 (1981); People v. Brown, 62 A.D.2d 715, 405 N.Y.S.2d 691, 695 (1978), aff'd, 48 N.Y.2d 921, 425 N.Y.S.2d 54, 401 N.E.2d 177 (1979). Still, as one court stated:

There are many situations, however, where the natural response of a person in possession of exculpatory...