State v. Garfole , 76 N.J. 445 ( 1978 )

The opinion of the court was delivered by

Conford, P. J. A. D.

(temporarily assigned). A dissent in the Appellate Division, 148 N. J. Super. at 134, brings this appeal by defendant from his criminal conviction before the Court as a matter of right, B. 2:2-1 (a). The dissent was confined to the issue of the rejection by the trial court of certain other-crimes evidence offered by defendant. This Court denied certification to defendant with respect to his claim of improper evidence of identification, both prior to trial and in court — an issue on which the Appellate Division was unanimous against defendant. 75 N. J. 12 (1977). We have examined the identification issue on its merits and conclude it lacks substance. In considering that issue we are not to be understood as necessarily holding that there is an appeal as of right as to an issue on which the Appellate Division is unanimous.

Defendant was convicted at a jury trial in March 1974 of threat to take life, assault with an offensive weapon, carnal abuse and lewdness, all allegedly committed in the course of a single episode on June 14, 1971 when an assailant accosted a sixteen year old boy (T. E.) and a fifteen year old girl (M. W.), threatened both and sexually molested the girl. Defendant had been indicted also on charges arising out of five other comparable episodes, four of them on March 13, May 1, May 12 and May 14, all in 1971, and one on March 27, 1972. The charges arising out of the first four episodes were dismissed on motion of the State at the outset of this trial, apparently because the witnesses in those incidents were either unable to identify defendant or unwilling to undergo the experience of testifying in the matters. The gravamen of the ground of appeal to the Appellate Division which presently concerns us is the trial court’s rejection of defendant’s attempt at trial on cross-examination of a prosecution police witness to develop the facts concerning each of the four criminal episodes prior to that related to the instant trial. This attempt was for the purpose of establishing by the similarity of the conduct of the assailant in each incident that one person was responsible for all of them and that defendant was not that person because he had an alibi for all but two of the occasions involved.

The trial judge rejected the defendant’s proffer summarily on the prosecutor’s objection based on irrelevancy to the charges on which defendant was being tried. The judge stated that only if the prosecutor adduced other-crimes evidence against the defendant to establish his identity would he allow alibi evidence by defendant as to such other crimes. The Appellate Division affirmed, not on the rationale of irrelevancy but on the ground that the acts of the assailant or assailants in the several occurrences were as a matter of law not sufficiently similar to establish that one person was the perpetrator in all. 148 N. J. Super. at 131. This ruling was made after the court granted defendant’s motion to expand the record on appeal to include the statements given to the police by the victims in the first four episodes.¹

As to the fifth incident, that for which defendant was tried, he was unequivocally identified as the offender by the victim M. W. both in a lineup conducted September 14, 1972 and in court. The male victim T. E. could not make a definite identification either at the lineup or in court because the “body” was “different” but he said the face was the same. T. E. said defendant on both the occasion of the lineup and at trial was not as heavy as the assailant and his hair was a different color. The evidence was that the assailant held a gun to the youths, forced T. F. to turn aside, threatened to shoot him when he protested the treatment of the girl, and said he did not wish to rape the girl but only to “feel” her. He then required M. W. to remove her clothing, inserted his finger into her vagina, made her touch his penis and compelled her to perform fellatio on him. There was no sexual penetration. After the assault the man apologized and said he was sick.

An ample description of the details of the other incidents in question will be found in the opinions delivered by the Appellate Division judges and need not be repeated here. See 148 N. J. Super. at 132, 133, 139-140. The majority opinion emphasizes the differences and the dissenting opinion the similarities in the respective occurrences and attendant circumstances. In addition to the close time sequence of the first five episodes, it is to be noted that all hut one occurred within the vicinity of the Cranford Junior High School and the other a half mile away. All the incidents transpired between 9:45 p.m. and 11:00 p.m:. Defendant represented to the court that he would show that on four of the occasions he was at work for the Central Railroad in Jersey City at 11:00 p.m:. He had no alibi for the date of the incident tried as he was off duty that night. Defendant did not testify in his own defense.

The crucial legal issue in this case is the extent to which Evid. R. 55 and the decisions expounding it in the context of use of similar other-crimes evidence by the State against an accused are applicable when a defendant seeks to use such evidence for purposes of exculpation. The trial judge apparently thought such evidence when proffered by a defendant to be completely without relevance; the Appellate Division majority required the proof to meet the same “high degree of similarity” of offenses as is applicable when offered by the State. 148 N. J. Super. at 141. We differ with the views of both tribunals in these respects.

Evid. R. 55 prohibits the evidential use of the commission of crime by an accused on another occasion “to prove his disposition to commit” the crime for which he is being tried. However, “such evidence is admissible to prove some other fact in issue including motive, intent, plan, knowledge, identity, or absence of mistake, or accident.” The manifold kinds of situations in which other-crimes evidence is admissible on behalf of the State notwithstanding the primary exclusionary intent of the rule are well and thoroughly canvassed in the majority and dissenting opinions in State v. Wright, 132 N. J. Super. 130, 147 (App. Div. 1974), reversed on the dissent, 66 N. J. 466 (1975). See also State v. Kociolek, 23 N. J. 400, 418 (1957); Report of the New Jersey Supreme Court Committee on Evidence (1963) 101-104; New Jersey Rules of Evidence (1972) 211-225. Central to the issue implicated by the approach of the Appellate Division to defendant’s proffer of proof here is the consideration that the exclusionary aspect of Evid. R. 55 is not founded upon the absence of any probative value of other-crimes evidence — indeed such value may be very high— but rather its undue psychological effect with a jury against a defendant. New Jersey Rules of Evidence, op. cit. supra, at 212. The law demurs at permitting a defendant to be convicted for a specific crime merely because his commission of crimes in the past shows him to be a bad person or haying a propensity to commit crime. Ibid; McCormick, Evidence 447 (2d ed. 1972); State v. Sempsey, 141 N. J. Super. 317, 322 (App. Div. 1976) certif. den. 74 N. J. 272 (1977); State v. Wright, supra, 132 N. J. Super. at 142.

We may readily dispose of the merits of the State’s objection at trial, sustained by the trial court, that defendant’s proffer of other-crimes evidence was objectionable because not relevant to guilt of the offense under trial. The evidence clearly had a relevant potential when coupled with the offer to establish an alibi for some of the other criminal episodes. McCormick points out that the prosecutor may offer proof of other crimes by the accused “so nearly identical in method as to earmark them as the handiwork of the accused”; op. cit. at 449. See also United States v. Cavallino, 498 F. 2d 1200, 1206-1207 (5 Cir. 1974) and People v. Matson, 13 Cal. 3d 35, 117 Cal. Rptr. 664, 528 P. 2d 752, 755 (Sup. Ct. 1974) (both describing the principle as the “modus operandi” rule). The same concept of relevancy which justifies submission of other-crimes evidence by the State supports it when proffered by the defendant. Therefore, as will be seen hereinafter, the question here is not relevance as such, but the degree of relevance balanced against the counter considerations expressed in Evid. R. 4 of undue consumption of time, confusion of the issues and the misleading of the jury.

As noted above, the basis of the Appellate Division’s affirmance was the supposed insufficiency of similarity of the series of offenses relied upon by defendant. In this regard the court imposed upon the defendant the same standards of degree of similarity of the several incidents as would apply if the offer of evidence was by the State. It required that “the device used [in the prior crimes] * * * be so unusual and distinctive as to be like a signature,” citing authority applicable to efforts by the prosecutor to establish by other offenses by the defendant that all, including the charge being tried, were committed by the accused. 148 N. J. Super. at 131.²

We are of the view, however, that a lower standard of degree of similarity of offenses may justly be required of a defendant using other-crimes evidence defensively than is exacted from the State when such evidence is used incriminitorily. As indicated above, other-crimes evidence submitted by the prosecution has the distinct capacity of prejudicing the accused.³ Even instructions by the trial judge may not satisfactorily insulate the defendant from the hazard of the jury using such evidence improperly to find him guilty of the offense charged merely because they believe he has committed a similar offense before. Therefore a fairly rigid standard of similarity may be required of the State if its effort is to establish the existence of a common offender by the mere similarity of the offenses. State v. Sempsey, supra, 141 N. J. Super. at 323. But when the defendant is offering that kind of proof exculpatorily, prejudice to the defendant is no longer a factor, and simple relevance to guilt or innoeence should suffice as the standard of admissibility, since ordinarily, and subject to rules of competency, an accused is entitled to advance in his defense any evidence which may rationally tend to refute his guilt or buttress his innocence of the charge made. See Evid. R. 1(2). The application of a modified requirement of relevancy to the proffer by a defendant is additionally justified by the consideration that the defendant need only engender reasonable doubt of his guilt whereas the State must prove guilt beyond a reasonable doubt.

It is well established that a defendant may use similar other-crimes evidence defensively if in reason it tends, alone or with other evidence, to negate his guilt of the crime charged against him. 2 Wigmore, Evidence (3d ed. 1940) § 304 at 205; § 341 at 245; Holt v. United States, 342 F. 2d 163 (5 Cir. 1965); State v. Bock, 229 Minn. 449, 39 N. W. 2d 887 (Sup. Ct. 1949); Commonwealth v. Murphy, 282 Mass. 593, 185 N. E. 486 (Sup. Jud. Ct. 1933). In each of the cited eases refusal of a trial court to admit such proof by a defendant resulted in an appellate reversal. But in each the probative force of the exculpatory proof, taken in entirety, including the similarity of other offenses relied on, was substantially stronger than the proffer made by defendant below.

In State v. Bock, supra, the defendant was charged with uttering a forged check which had been stolen, along with a checkwriting machine of the drawer company. The suspect had attempted to cash the check on the pretense of purchasing merchandise, and to receive change from the check on the purchase. Over objection of the defendant, evidence was adduced by the State of three similar fraudulent trans1 actions by defendant a month later. The defendant then offered to prove that two other checks of the same company whose check he was accused of uttering, and substantially the same in all respects, were passed during the same time period by a person identified not to be the defendant; also that after defendant was convicted another individual was found guilty of a similar offense and furnished an affidavit that he was the one who had passed the check involved in the other transactions proved by the State.

In Commonwealth v. Murphy, supra, the defendant was convicted on four complaints of similar occurrences wherein he was alleged to have undertaken to rent apartments from certain women and to have obtained cash from them as change from a forged check. It was conceded that all of these checks were drawn, endorsed and delivered by the same man, and each of the victims identified the defendant. The defendant offered in evidence one check drawn on the same bank and two others drawn on a different bank, all at about the same time, together with evidence of a handwriting expert that both the typewriting and the handwriting upon those cheeks were identical with those on the four checks on which defendant was charged. Moreover, the circumstances under which the other checks were used were exactly the same as those in the instances alleged against the defendant. It was further proffered that two of the recipients of the other cheeks would testify that defendant looked somewhat like but was not the man who gave and endorsed the checks to them; and, moreover, in the case of the third other incident, that the defendant was in custody on the date that that check was passed. Furthermore, the defendant had been acquitted on charges with respect to two of the other check incidents.

In Holt v. United States, supra, the defendant was charged on a federal indictment with having transported a stolen automobile from Dallas to Atlanta and with having sold it in Atlanta on the same day, using the name Earl Albert Boyd, and having transported another automobile received in trade for the first one from Atlanta to Dallas. There was evidence that 96 title certificate blanks had been stolen several months previously in Oklahoma. One of those title certificates was used in the transaction by which the first car was sold in Atlanta and another in a sale at Dallas of the car received in trade in Atlanta. Defendant was identified by the other party in each transaction. The defense was mistaken identity. Defendant offered fairly strong alibi evidence. He also attempted to introduce evidence showing that he had twice before been identified as the person involved in similar stolen anto sales wherein the name Earl Albert Boyd was used by the seller and the same stolen certificates were used. Defendant also offered testimony by an EBI agent that, notwithstanding defendant had been positively identified as an Earl Albert Boyd who had sold a stolen automobile in Phoenix with one of the same stolen certificates on a certain date, that charge was later dismissed for insufficient evidence. The agent also testified that defendant had been identified as the perpetrator of another such sale in California on a day when the defendant was with the agent at a hearing in Oklahoma City on the Phoenix charge.

In reasoning common to the appellate opinions in each of the three cases just discussed the court in the Bock case said that if an inference that defendant uttered the check for which he was tried was permissible from proof by the State that he passed three others in similar circumstances "there appears to us no good reason why an opposite inference that defendant was not the person who offered [the check for which he was tried] is not permissible from a showing that cheeks identical with [the latter] were offered or passed on the same day and in a like manner by someone other than defendant.” 39 N. W. 2d at 891.

If no other considerations came into play it might thus well be concluded that defendant’s proffer of proof, as expanded at the Appellate Division level, was of sufficient probative value to warrant its admission into evidence for appraisal by the jury. But important coordinate factors, highly material to the sound administration of the trial process, require appraisal along with the factor of the degree of relevance of defendant’s proffered proofs. These are those mentioned in Evid. R. 4 which, to the extent here material, reads:

The judge may in his discretion exclude evidence if he finds that its probative value is substantially outweighed by the risk that its admission will either (a) necessitate undue consumption of time or (b) create substantial danger of * * * confusing the issues or of misleading the jury.

Defendant’s proffer, as argued by the State, does create the possibility of undue consumption of time and of danger that the jury might be confused or misled. A trial of defendant’s guilt of the misfeasances of June 14, 1971 would become expanded into one of determination as to his guilt vel non of each of the four prior occurrences and possibly of the sixth. Defendant’s proofs of the other occurrences and his tendered alibis for four of them would generate four mini-trials as to the truth of those claims. Each of the victims involved in the four (or five) episodes other than that of June 14, 1971 would be subject to subpoena and possible examination and cross-examination with respect to identification or exculpation of defendant on each such occasion,⁴ and each such episode would or could become the subject of a separate adversarial contest as to identity.⁵

Although Rule 4 considerations generally are mentioned in connection with the factor of undue prejudice to the defendant when other-crimes evidence is advanced offensively by the State, see New Jersey Rule of Evidence, op. cit., supra, at 213, and State v. Wright, supra, 132 N. J. Super. at 143, we are clear that it is highly appropriate for a trial judge, confronted with the opposing evidential considerations in such a situation as here presented, to weigh in the balance the concern of the law for orderly and efficient administration of the jury process. Cf. Stoelting v. Hauck, 32 N. J. 87, 103 (1960).

Accordingly, what is called for in the present case is a highly discretionary determination as to the admissibility of the defendant’s proffered evidence which weighs and takes into account the degree of relevance of the disputed evidence as against the Rule 4 considerations which militate for rejection of it. Under Rule 4 the criterion is whether the considerations specified therein substantially outweigh the probative value of defendant’s proffer. This is peculiarly a matter for decision, at least in the first instance, by the trial judge who tried this case. The judge should on the remand take such specific proof from defendant on voir Aire as to his purported alibis as defendant wishes to submit so that the judge can be aided in formulating a fair impression of the degree of probative strength of the proffered proofs taken in entirety.⁶ If the judge’s ultimate decision is for admission of the evidence he shall then order a new trial; if his decision is for rejection, the judgment of conviction shall stand. Cf. State v. Koch, 118 N. J. Super. 421, 426, 434 (App. Div. 1972). In either ease there may be summary review in this Court on notice by the aggrieved party within ten days after entry of judgment. We retain jurisdiction for that purpose.

The cause is remanded to the Law Division for further proceedings conforming to this opinion.

1 Specifics as to the sixth incident are lacking, defendant not having submitted any victim’s statement in relation thereto. However at trial the State conceded that the events in the fifth and sixth episodes showed the “same factual pattern.”

Defendant’s appellate briefs seek to bring the sixth episode within his alleged proffer. However, at trial he mentioned only the “prior” crimes, and, as noted, the expansion of record at the appellate level did not include any material as to the sixth incident.

2 Tt is dear that the standards of high similarity of other offenses imposed when the State advances them only to draw the inference that the same person (the defendant) committed all of them and that being tried is not necessarily applicable when other-crimes evidence is used to establish defendant’s guilt by showing motive, intent, absence of mistake or the like under the various other exceptions set forth in Evid. R. 55. See illustrations (1), (2), (4), (5), (6), (7), and (9), as distinguishable from (3), in McCormick’s discussion, op. cit., supra, pp. 448-451.

Moreover, when the State uses other-crimes evidence offensively, it must adduce substantial proof of defendant’s connection with such •other crimes independent of the inferences to be drawn from their mere similarity. McCormick, op. cit., at 451-452. See also People v. Albertson, 23 Cal. 2d 550, 557-581, 591-599, 145 P. 2d 7, 22 (Sup. Ct. 1944) (it “must be shown with reasonable certainty that the ■defendant committed the other crime.”)

3 For a discussion of the various kinds of prejudice to which other-crimes evidence may subject a defendant when offered by the State, see Report of the New Jersey Supreme Court Committee on Evidence, op. cit., supra, at 102.

4 We noted earlier that the State bad dismissed the indictments charging defendant with the commission of these other crimes because of the unavailability or reluctance of witnesses to testify. If the defendant is confronted with similar obstacles in an attempt to prove the occurrences he will have to satisfy the judge at the voir dire that hei will be able to adduce the necessary proofs at the trial.

5 There is less danger of such confusion when the State offers such evidence against a defendant since it is under the burden of connecting the defendant with each other offense by substantial evidence. See note 2, supra.

6 Our directions here are based upon the precise state of tbe record of this case. They are not intended to circumscribe the discretion of a trial judge as to when, in other comparable situations on voir dire, full proofs rather than proffers shall be required as to particular elements of the evidence.