State v. Peetros , 45 N.J. 540 ( 1965 )

The opinion of the court was delivered

Per Curiam.

Defendants, James Peetros and Charles Thomas Koskinas, were convicted of armed robbery. On appeal, in an unreported opinion, the Appellate Division reversed as to Peetros holding that the failure of the trial judge to instruct the jury on alibi was plain error and as to Koskinas, holding that certain cross-examination of him by the State regarding a crime involving firearms with which he had been charged but not convicted constituted reversible error. The Appellate Division remanded the cause for a new trial. We granted the State’s petition for certification. 45 N. J. - (1965).

The facts are relatively simple. As was his practice, John Daly, owner of Daly’s Grill, left his place of business at 10:30 a.m. on June 23, 1961, and drove to a bank to cash checks. On the return trip he was cut off and forced to stop by a car that swerved in front of him. Two men wearing gloves, straw hats and sunglasses got out of the other car, put guns into Daly’s ribs, and forced him to give them his money. They then hit Daly with fist and gun, forced him to lie down on the floor of his car, returned to their ear and drove away.

Daly said he recognized Peetros at the holdup scene as a man who had been in Daly’s Grill on five successive Thursdays. Daly examined rogues’ gallery photographs at Camden and Philadelphia without result. Five weeks after the holdup Daly saw the defendants, recognized them, saw them drive off in a white car with Pennsylvania license plates and reported this to the police. (Defendant Koskinas stated he owned a black Cadillac; defendant Peetros admitted owning a black Cadillac with a white top.) Some months later Daly was shown additional mug shots among which he found the pictures of the defendants. After defendants were apprehended, Daly picked them out of lineups as the holdup men..

Defendants claimed mistaken identity. Peetros denied he was ever in Daly’s tavern, and testified he was with his dentist in Philadelphia between 10:00 a.m. and 11:00 a.m. on the day of the crime. He had no independent recollection of his whereabouts and relied upon an entry in the dentist’s appointment book. The dentist also so1 testified on the basis of that entry. The entries in the appointment book were few in number, and were in pencil. The dentist said that the work done would have taken more than one hour to perform, and that he charged $5.00 for his services.

Koskinas testified that he could not remember where he was on June 23, 1961, but that on that day he never left Philadelphia, his place of residence.

J.

Peetros prevailed in the Appellate Division upon his claim that the trial court committed "plain error” in failing to charge, although no request or objection was made, "that alibi was an element of the defense and that it was incumbent upon the State to prove beyond a reasonable doubt that Peetros was present at the scene of the crime.” In reversing the conviction upon that ground the Appellate Division relied upon State v. Searles, 82 N. J. Super. 210, 213 (App. Div. 1964).

We have since held in State v. Garvin, 44 N. J. 268 (1965), that alibi is simply part of a defendant’s general denial of guilt and that it need not be singled out for special instruction to the jury. We said (p. 274) :

“* * * 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.”

It is true, as the dissent in the present case says, that a defendant who claims an alibi might find it awkward to contend not only that he was not there but also that the alleged criminal event itself never in fact occurred. If any awkwardness is involved, it is present whenever a defendant denies involvement in the critical event and hence is not peculiar to a claim of alibi. At any rate, we do not see how this problem bears upon the question whether there should be a special instruction upon a claim of alibi.

In the present case the factual situation was uncomplicated. Daly testified that defendants held him up and defendants testified they did not, Peetros adding that he was at his dentist’s office at the hour of the crime and Koskinas saying he had no precise idea where he was at that time. The contending factual claims were arrayed against each other in plain view. The court’s charge¹ correctly described the State’s burden to prove guilt beyond a reasonable doubt, requiring an acquittal if a reasonable doubt remained after a consideration of “all the evidence” in the case. The situation comes precisely within the following excerpt from Garvin (44 N. J., at p. 274) :

“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.”

Hence the judgment of the Appellate Division cannot be sustained on the basis it gave. Nor can it be upheld upon other grounds Peetros urges. More specifically, we see no error in the trial court’s refusal to permit Peetros to prove that he offered to submit to a Re detection test if the State would stipulate the results would be evidential; nor can we say the verdict was against the weight of the evidence.

II.

As to Kostinas, the Appellate Division found error in the prosecutor’s cross-examination with respect to a prior conviction for crime. The prosecutor held a report from the State Bureau of Identification showing defendant’s several encounters with the law. The report showed a charge in Pennsylvania reading: “Eire Arms Act. Aslt. w/i to Ravish.” The report noted this disposition: “250 F & C [fine and costs]. 9-18 Mos. If F & C are Pd. Par. under terms not to contact girl or family in any way.”

The cross-examination complained of reads:

“Q. Have you ever been convicted of crime? A. Yes, I have.

Q. In Pennsylvania? A. Yes, sir, I have.

Q. Any other state? A. No.

Q. Just Pennsylvania? A. Yes, sir.

Q. Did that crime involve firearms, sir? A. No, sir.

Q. Use of firearms, guns, or anything like that? A. No, sir.

[Objection]

The Court: * * * [A]n answer was given, a negative answer. I see no harm. I will let it stand on the record.

Q. In the immediate area, Pennsylvania, January 30, 1961, were you not charged with violation of the Firearms Act, assault with intent to ravish, and given a sentence of $250.00 fine and nine to eighteen months in jail? A. I was charged, but I was not found guilty of the gun charge.

Q. Did you receive a sentence of $250.00 fine and nine to eighteen months in jail? A. Not for the gun charge.”

Thereafter defendant was permitted by the court to advance this explanation:

“At the time of the arrest, I was searched and placed in their custody and in their car. Later on, a gun was found in their car, which they tried to charge me with. The Judge disqualified that charge.”

Apparently subsequent investigation supported defendant’s claim tbat he was not convicted on the weapons charge. The State Bureau’s report in that respect was wrong or at least misleadingly ambiguous. At any rate, at the trial defendant’s denial of a conviction under the firearms act was not disputed by any proof offered by the State. There was no motion for a mistrial, and since no such claim is made, we assume the prosecutor did not thereafter intimate to the jury that defendant had been convicted of a crime involving firearms. The final proposition in the trial court’s charge to the jury confined the role of prior convictions to defendants’ credibility and directed that they "shall not be considered as substantive proof that the defendants respectively committed the crime charged in the indictment.”

We note at once that the good faith of the prosecutor is not in question and hence there is no call upon the Court’s supervisory authority to reverse for intentional misbehavior without regard to its impact. Rather the question is whether what transpired infected the fairness of the trial. We think it did not.

The prosecutor did not suggest there was a conviction where in fact there was none. On the contrary the prosecutor was referring to one of several undisputed convictions for crime. Although it may be argued that a juror cannot but find "propensity” for crime in proof of prior convictions, the settled practice rests upon a faith that the jury will honor the instruction that such evidence bears only upon credibility. If that faith is misplaced, then of course prior convictions should not be provable — ait least not a prior conviction for an offense which resembles in any way the allegations being tried. As we have said, the established practice is the other way, and it is in the context of this practice and the belief upon which it rests, that we must decide whether there was prejudicial error.

In this connection we are referred to State v. Arnwine, 67 N. J. Super. 483 (App. Div. 1961), where the defendant was convicted of incest with his 12-year-old daughter. The conviction was reversed because the prosecution erroneously referred to a prior conviction for “rape” when in fact the rape charge had been dismissed and the conviction was for assault and battery. The Appellate Division thought the charge of rape was “in the same area of a serious sex offense as the one with which he stood charged” and concluded the mistaken mention of such a charge was plain error in the context of the “reprehensible and revolting sex crime” for which he was on trial (at p. 486). We have not examined the record in that case and hence do not evaluate the result. We stress, however, that in the nature of the subject Arnwine cannot be understood to mean that reversible error necessarily exists whenever the essence of a prior conviction is misstated to reflect a factual element involved in the case on hand. Here the reference to a gun related to an assault with intent to ravish, which is quite different from an armed robbery. Indeed the conceded convictions involved the theft of property, a subject more related to the crime of robbery. Further, defendant’s denial that he was convicted of a flrearms violation remained unrebutted. In the total circumstances, we cannot say the prosecutor’s misstatement impaired the presumed capacity of the jury to abide by the law.

Koskinas pressed a second point before the Appellate Division. We see no force in it. The trial court observed that the question is one of fact as to whether the State’s witnesses or the defendant’s “are telling the truth.” In passing we note this analysis is correct enough, provided, in resolving that inquiry, the jury understands the State’s burden of proof is beyond a reasonable doubt. This the trial court’s charge, considered as a whole, made eminently cleai\ Koskinas did not suggest otherwise. The objection he made at trial, which frankly we find to be unclear, reads:

“I am objecting' to that portion of the charge to the jury, because the question as to whether or not the State’s witnesses are telling the truth is not in issue. The question for the jury to determine is whether the witnesses are relating the facts as they appear to them, and as they know it, and not whether they are telling the truth or not telling the truth.”

In his brief defendant argues the issue should be, not whether the State’s witnesses believe they are telling the truth, but whether what they believe to be true is the truth. We do not see how the jury could have had any other understanding. Obviously the trial court did not say the jurors should convict if they found Mr. Daly was an honest but mistaken witness. The court directed the jury to seek the “truth,” not Mr. Daly’s belief as to what was the truth.

Finally Koskinas contends the verdict was against the weight of the evidence. We are satisfied the verdict does not reflect mistake, prejudice, partiality or passion.

The judgments of the Appellate Division are reversed and the judgments of conviction are affirmed.

1 The court charged:

“In this, as in every criminal case, the defendants are presumed to be innocent until they are respectively proven to be guilty.

The burden of proving the guilt of the defendants is upon the State, and always upon the State. That burden never shifts, but remains upon the shoulders of the .State throughout the entire ease. That burden is the burden of proving to you beyond a reasonable doubt that each defendant is respectively guilty of the crime as charged.

If there be a reasonable doubt as to the guilt of either or both of the defendants, then such defendant or defendants shall be declared not guilty.

Reasonable doubt is a term often used, probably rather well understood, but not easily defined. It is the state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction to a moral certainty of the truth of the charge. The evidence must establish the fact to a moral certainty, a certainty that convinces and directs the understanding and satisfies the reason and the judgment of those who are bound to act conscientiously upon it. It is not a mere possible doubt, because everything relating to human affairs and depending on oral evidence is open to some possible or imaginary doubt.

But, if after canvassing all the evidence, giving the accused the benefit of reasonable doubt, you are led to the conclusion that the defendants or either of them are guilty, then you should so declare by your verdict.” (Emphasis added)