Conford, Collester and Kolovsky. The opinion of the court was delivered by Kolovsky, J.A.D. Conford, P.J.A.D. (dissenting).
Defendant was found guilty on all counts at a consolidated jury trial of four indictments charging that on May 15, 1967 he had, while armed with a pistol, (1) kidnapped and (2) raped Susan , and (3) kidnapped and (4) attempted to rape Elaine . Two briefs have been filed on his behalf on his appeal from the judgments of conviction. One submitted by the Public Defender argues seven points for reversal; the other, a supplemental brief filed pro se , but concededly prepared by the member of the New York bar who was permitted to join in the oral argument before us, presents three additional contentions in support of the appeal.
We have reviewed the lengthy record of the trial and the arguments presented and find no basis for reversal.
The crucial factual dispute at the trial involved the identity of the offender -- whether, as the State charged, it was the defendant. That the offenses described in the indictments had in fact been committed was essentially uncontradicted. The only criticism at the trial of the evidence of the elements of the offenses concerned the adequacy of the proofs as to "penetration," an essential element of the rape charge, and as to this the evidence was sufficient to support the jury's verdict.
In essence the State's proofs as to the offenses, as distinguished from its proofs as to the identity of the offender, showed that at about 9 P.M. on May 15, 1967, as Elaine was leaving Susan's automobile which had been parked briefly in front of Elaine's home in Hamilton Township, near Trenton, a man, identified by the girls as the defendant, approached with a gun in his hand, ordered Elaine back into the front seat of the auto, pushed his way into the back seat and told Susan to drive off.
Elaine testified that as they were riding she offered the intruder whatever money they had, to which he replied that that was not what he wanted, that "he intended to rape both of us." He then ordered her to get undressed. Under
threat of physical violence and after repeated refusals, Elaine removed her undergarments, climbed over the front seat into the back seat with the attacker, was subjected to having her "private areas" touched by this man, had the man move between her legs, but at no time "did the private parts of his body touch the private parts of [her] body." Elaine added that her attacker was brandishing his gun all the while.
The car eventually came to a stop. Elaine climbed back into the front seat and was allowed to put her raincoat on. Susan was told to get undressed and get into the back seat and Elaine was ordered to drive and she did.
Susan corroborated most of Elaine's testimony. She testified that when she got into the back seat of the car she was forced to have intercourse with her attacker, that she was penetrated, but that the penetration lasted only a matter of seconds because she picked up a can of De-Icer and hit her attacker in the face with it.
Sometime later each of the girls was forced to show the attacker some identification, at which point he threatened that "they would pay" if they reported the incident to the police. He then got out of the car, only one block from Elaine's home, and walked away. An hour and a half had elapsed since the attacker had first appeared.
We treat first with the contentions advanced on appeal which do not relate to the issue of identification.
Defendant argues that his motion at the end of the State's case to dismiss the two kidnapping indictments should have been granted because he contends there was but one criminal transaction, "the carrying away was an incident of rape and attempted rape"; "the kidnapping charged here was part of a continuous course of conduct which had as its sole aim the accomplishment of rape and attempted rape."
Defendant recognizes that we have heretofore ruled "that rape and kidnapping are separate crimes even when the kidnapping is for the purpose of the rape." State v. Johnson ,
He argues, however, that the rule should be changed and that we should substitute therefor the "modern" interpretation of kidnapping statutes adopted by the California court in People v. Daniels , 80 Cal. Rptr. 897, 459 P. 2d 225 (Sup. Ct. 1969), and by the New York court in People v. Levy , 15 N.Y. 2d 159, 256 N.Y.S. 2d 793, 204 N.E. 2d 842 (Ct. App. 1965), and People v. Lombardi , 20 N.Y. 2d 266, 282 N.Y.S. 2d 519, 229 N.E. 2d 206 (Ct. App. 1967).
The present California rule was stated in People v. Daniels, supra
The rule of construction declared in People v. Chessman (1951) supra , 38 Cal. 2d 166, 192, 238 P. 2d 1001, 1017, i.e. , that "It is the fact, not the distance, of forcible removal which constitutes kidnapping in this state," is no longer to be followed. Rather, we hold that the intent of the Legislature in amending Penal Code, section 209 in 1951 was to exclude from its reach not only "standstill" robberies (e.g., People v. Knowles (1950) supra , 35 Cal. 2d 175, 217 P. 2d 1) but also those in which the movements of the victim are merely incidental to the commission of the robbery and do not substantially increase the risk of harm over and above that necessarily present in the crime of robbery itself. [80 Cal. Rptr. , at 910, 459 P. 2d, at 238]
It is immediately evident that the quoted rule is inapplicable to the factual circumstances of this case, which involved not "brief movements" of the victims but asportation of the victims for substantial distances during a period of 1 I/2 hours, during all of which time the victims faced the threat of the pistol in the assailant's hands.
The New York court itself has recently observed in People v. Miles , 23 N.Y. 2d 527, 297 N.Y.S. 2d 913, 245 N.E. 2d 688 (1969), cert. denied 395 U.S. 948, 89 S. Ct. 2028, 23 L. Ed. 2d 467 (1969):
In short, the Levy-Lombardi rule was designed to prevent gross distortion of lesser crimes into a much more serious crime by excess of prosecutorial zeal. It was not designed to merge "true" kidnappings
into other crimes merely because the kidnappings were used to accomplish ultimate crimes of lesser or equal or greater gravity. Moreover, it is the rare kidnapping that is an end in itself; almost invariably there is another ultimate crime. [297 N.Y.S. 2d 922, 245 N.E. 2d 695]
There is therefore no reason for us in this case to undertake an evaluation of the rule adopted by the California and New York courts. (It may be noted that the Supreme Courts of Delaware, Minnesota and Kansas have found the reasoning of the New York court in People v. Levy, supra , to be unpersuasive. See Samuels v. State , 253 A.2d 201, 203-204 (Del. Sup. Ct. 1969); State v. Morris , 281 Minn. 119, 160 N.W. 2d 715, 717-718 (Minn. Sup. Ct. 1968); State v. Ayers , 198 Kan. 467, 426 P. 2d 21, 24-25 (Sup. Ct. 1967)).
Defendant also argues that there was error in five aspects of the court's charge although no question was raised in the trial court with respect to the first two items to be mentioned. Suffice it to say that we are satisfied that there is no justification for the criticisms directed to the instructions given by the court with respect to (1) the elements of the crime of kidnapping, (2) the evaluation of the identification testimony, and (3) defendant's alibi.
Further (4) the trial judge did not abuse his conceded discretion, State v. Wesler , 137 N.J.L. 311, 316-317 (Sup. Ct. 1948), aff'd o.b. 1 N.J. 58 (1948), in deciding not to charge the maxim " falsus in uno, falsus in omnibus." Finally (5) the court acted properly in denying defendant's request that it charge the so-called "equipoise" rule. The court's charge embodied the proper test to be applied in weighing evidence in a criminal case to determine if guilt exists, "whether it is sufficient to generate a belief of guilt beyond a reasonable doubt." State v. Ray , 43 N.J. 19, 31 (1964); State v. Fiorello , 36 N.J. 80, 87-88 (1961).
We find no prejudicial error in the method adopted by the court in furnishing the jury with the information sought by the question propounded by it during the course of its
deliberations. Nor was any prejudice suffered by defendant from the court's ruling on the objection made by defendant during the prosecutor's summation.
Defendant's motion, made prior to the selection of the jury, that "all witnesses, whether they be State or defense, with the exception of expert witnesses be excluded from the courtroom," was granted, but then when the court ruled that this included such members of defendant's family as would appear as witnesses, defendant withdrew his motion, reserving the right to renew it during the trial. The motion was not renewed. There is no substance in the contention now advanced that it was improper for the court to rule, before defendant withdrew his motion, that the sequestration order would apply to defendant's wife and mother, as well as to the other prospective witnesses in the case.
We turn now to the issues raised relating to the proofs as to the identity of the offender.
A description of their attacker given by the girls to the police late on the night of May 15 or in the early hours of May 16 included a description not only of his physical features, his clothes and appearance -- e.g. , Elaine told the police that their attacker "was very sloppily dressed and dirty and he smelled like grease or oil, it was a dirty kind of smell" -- but also of the pistol he carried and the dark-colored skull cap with strings hanging down the side and the gloves he was wearing. But Elaine, when asked by the police about 3 A.M. on May 16 whether she thought she could identify the assailant if he were apprehended, answered, "I am doubtful." Later on the 16th, Detective Lieutenant Keegan and Detective Mohr of Hamilton Township had the girls look at a number of rogues' gallery photographs. No identification was made.
On the evening of May 17 the detectives took the two girls to police headquarters in Middletown Township, Pennsylvania. Since late 1962 that police department had among its equipment an item known as an "Identi-Kit." One of its police officers, Norbert Banach, was trained to use it and
had used it "many times." The "Identi-Kit" is used by police departments as an aid to the preparation of a sketch of a subject based on an eyewitness' description. See 20 American Jurisprudence, Proof of Facts , at 551 (1968):
Probably the most useful aid, and the one in widest use, is an invention called Identi-Kit. The kit consists of hundreds of transparent celluloid overlays on which are printed variations of the human features: hairline, nose, eyes, chin contour, mouth, etc. The eyewitness is asked to select the set that most closely resembles the subject; the overlays are assembled to form a complete facial sketch. Each overlay is numbered so that the sketch will show a row of numbers that can be transmitted by wire or telephone, enabling a distant police department to duplicate the sketch in minutes. Speed is in fact the outstanding asset of Identi-Kit; a trained operator can form the sketch in two or three minutes as opposed to the hours it requires an artist to draw one.
Identi-Kit was developed after long study of the principles of physiognomy and comparisons of hundreds of thousands of photographs of arrested persons. It is claimed that, because of consistencies in the human structure, a likeness of a subject can be constructed on the basis of only four known factors: his approximate age, weight, and height, and the one of 49 different hairlines that is closest to his own. Thus even a face mask will not prevent a rendition.
Banach testified for the State and with the Identi-Kit before him described it and explained and demonstrated the manner of its use to the jury, saying among other things:
You ask the people certain individual questions on size, height, weight and any special features they remember about a person's face and then with that you put a group of slides together to come out with a likeness similar to what they want and from that changes are made, if they don't like the eyes or they ...