The State contends any error did not constitute plain error as defense counsel did not request such a charge. In State v. Merola, 214 N.J. Super. 108, 518 A.2d 518 (App.Div. 1986), certif. denied, 107 N.J. 91, 526 A.2d 168 (1987), the State claimed that defendant shot two people during a drug deal. Defendant stated that the two victims shot each other.
Compare People v.Conyers, 52 N.Y.2d 454, 459, 438 N.Y.S.2d 741, 744, 420 N.E.2d 933, 935-36 (1981) (probative value of "pretrial" silence is nearly always outweighed by the risk of undue prejudice: "the use of such evidence for impeachment purposes cannot be justified in the absence of unusual circumstances") with People v. Collier, 426 Mich. 23, 393 N.W.2d 346 (1986) (pre-arrest silence found admissible because it would have been natural for defendant to report to the police that he had been robbed by the person he was charged with assaulting). The lower courts in this case relied heavily on the Appellate Division decision in State v. Merola, 214 N.J. Super. 108, 518 A.2d 518 (1986), certif. denied, 107 N.J. 91, 526 A.2d 168 (1987). In Merola, the State alleged that the defendant had killed one person and wounded another during a drug deal; the defendant claimed that the two victims had shot each other during the drug deal.
[ 447 U.S. at 239, 100 S.Ct. at 2129, 65 L.Ed.2d at 95]. In State v. Merola, 214 N.J. Super. 108 (App.Div. 1986), certif. den. 107 N.J. 91 (1987), Judge Baime reviewed the authorities on the subject of pre-arrest silence.
At this point, the questioning about whether Marshall had ever approached the authorities concerning the investigation ceased. Defendant contends that the prosecution's cross-examination, emphasizing defendant's failure to communicate with the authorities about the progress of the investigation, infringed on defendant's exercise of his privilege against self-incrimination, citing State v. Deatore, 70 N.J. 100, 358 A.2d 163 (1976); State v. Merola, 214 N.J.Super. 108, 518 A.2d 518 (App.Div.1986); and other state and federal precedents. In Deatore, the defendant was on trial for armed robbery.
The jury in Sutton's trial was instructed on this offense. See Commonwealth v Nickerson, 386 Mass. 54, 60-61; 434 N.E.2d 992 (1982), State v Merola, 214 N.J. Super. 108, 116-121; 518 A.2d 518 (1986), Silvernail v State, 777 P.2d 1169, 1178 (Alas App, 1989), and People v McKinney, 193 Ill. App.3d 1012, ___; 550 N.E.2d 604, 608 (1990), lv den 132 Ill.2d 551 (1990). In McKinney, 550 N.E.2d 608, the Appellate Court of Illinois concluded that "[t]o adopt a rule that it is likely that everyone who acts accidentally or negligently will immediately acknowledge that action or negligence fails to meet the test of reason."
While the use of this defendant's pre-arrest silence would apparently not violate due process principles of the Fourteenth Amendment . . ., his failure to come forward in these circumstances says little about the truth of his trial testimony. See also State v Merola, 214 N.J. Super. 108, 117-118; 518 A.2d 518 (1986), and Silvernail v State, 777 P.2d 1169, 1178 (Alas App, 1989). On this record, to suggest otherwise would be tantamount to holding that all persons — innocent and guilty — have a duty to volunteer self-incriminating information.
For silence to be probative, "it must appear that the failure to speak was unnatural and that an ordinary person would have come forward with the exculpatory information under the circumstances." State v. Merola, 214 N.J. Super. 108, 118 (App.Div. 1986), certif. denied, 107 N.J. 91 (1987). Here, the defendant's failure to disclose the prostitution allegation at the earliest possible point has no real probative value on, or relevance to, the issue of his credibility or culpability.
The petitioner filed a notice of appeal which resulted in an affirmance by the Appellate Division in a reported opinion entered on December 1, 1986. Certification to the New Jersey Supreme Court was denied on February 2, 1987. State v. Merola, 214 N.J. Super. 108 (App.Div. 1986),certif. denied, 107 N.J. 91 (1987).
This conclusion was reached "as a matter of state law and policy," based upon the "privilege against self-incrimination which is enshrined in the common law." Id. at 112, 113 See also State v. Whitehead, 80 N.J. 343, 346-348 (1979); State v. Lyle, 73 N.J. 403 (1977); State v. Alston, 70 N.J. 95 (1976); State v. Micheliche, Jr., 220 N.J. Super. 532 (App.Div. 1987); State v. Merola, 214 N.J. Super. 108 (App.Div. 1986), certif den., 107 N.J. 91 (1987). 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.
See Merola v. Sherrer, 07-948 (SDW), Docket Entry No. 2-4, at 2 (reproducing Merola v. Beyer, 90-971 (JWB) (hereinafter "Merola, D.N.J.", at 2 (D.N.J. June 29, 1990) (J.W. Bissel, C.J.)). Petitioner's appeal of his conviction and sentence to New Jersey Superior Court, Appellate Division, was denied on October 28, 1986, see State v. Merola, 214 N.J. Super. 108 (N.J.Super. App. Div. 1986), and the Supreme Court of New Jersey denied Petitioner certification on April 19, 1989. See State v. Merola, 117 N.J. 37 (1989).