Sullivan, Carton and Halpern. Halpern, J.A.D. Sullivan, P.J.A.D. (dissenting).
Defendants appeal final judgments of conviction for rape (N.J.S.A. 2A:138-1). They were each sentenced to indeterminate terms at Bordentown Reformatory with 15 year maximums.
The principal issue confronting us is whether the in-court and pretrial identification testimony of the 13 year old victim, which was not objected to, violated defendants' constitutional rights and should be recognized as plain error. Since our answer is in the affirmative, a summary of the relevant facts relating to the crime and identification procedures used becomes necessary.
The victim testified that on December 5, 1967 between 6:30 P.M. and 7 P.M. she was walking in the street when a car containing three men stopped. Two men emerged, one with a gun and the other with a knife, forced her into the car, and made her lie on the floor. They drove to a wooded area where the three men raped her. She noted the license number of the car when she was let off. The police were notified and subsequently the defendants were separately picked up as suspects and taken to police headquarters.
THE VICTIM'S IDENTIFICATION OF EDGE
She testified, that while on the car floor, she saw defendants' faces when they passed street lights, and when she exited from the car. She heard their voices while they talked. She described Edge to the police thusly "He was wearing like a cap, and he was kind of, oh, kind of tall, and not too tall, too, and he had on a dark jacket, dark pants." His hair "was short and kinky." The record does not indicate whether the description given fits Edge.
On December 6, 1967 between 9:45 P.M. and 11 P.M. (27-29 hours after the event) she was taken to the police station to identify Edge. She viewed Edge through a one-way mirror while he was talking to a police officer in a room, and was then brought face to face with and listened to him talk.
She then identified Edge as being one of her attackers because "he looked like the man."
It should be noted that Detective Mohr, who was in charge of the investigation, and was present at the police station confrontation, testified that the victim at first hesitated -- walked away from Edge and he said to her "Is this the man that raped you?" -- again she said nothing but went back and took another look -- once again he asked her "Is this the man that raped you?", and finally she answered "Yes, he did." He also testified he had previously shown her a photo of one Robert Edge, but while she thought it looked like one of her assailants she could not identify him.
At the trial, without objection, she testified to the pretrial identification, and then identified Edge in the court room.
THE VICTIM'S IDENTIFICATION OF ROBBINS
She testified that Robbins drove the car, and she could see part of his face from her position on the floor of the car. She described him to the police thusly "He was kind of tall and between medium and slim build, and that he had a black kerchief or scarf around his head with a cap on or a hat or something like that, and that he was kind of dark in complexion." At one point she said his skin was "very dark" although in her written statement to the ...