For reversal in part and affirmance in part -- Chief Justice Weintraub, Justices Jacobs, Hall and Mountain, and Judge Sullivan. Opposed -- None. The opinion of the Court was delivered by Mountain, J. Weintraub, C.J. (concurring).
Defendant was indicted for having allegedly committed the crime of rape, N.J.S.A. 2A:138-1, as well as the crime of sodomy, N.J.S.A. 2A:143-1. He was tried to a jury and convicted of both offenses. Upon appeal the Appellate Division affirmed the sodomy conviction but reversed the conviction for rape, remanding that issue for a new trial. We granted both defendant's petition and the State's cross-petition for certification. 59 N.J. 288 (1971).
The facts may be briefly summarized. Defendant admitted that he paid a visit to the apartment of the victim during the evening of July 18, 1969. They were only casual acquaintances
but he was apparently made welcome and in fact served a meal. There was testimony from which the jury might have found that later in the evening, following some desultory conversation, defendant made advances to his hostess which were at once rebuffed. He nevertheless persisted and by his threats, conduct and manner so terrified her that she feared for her life and effectively lost all power of resistance. He made her disrobe and thereafter over a period of several hours, compelled her to engage in natural sexual intercourse and in acts of anal sodomy, each upon three occasions. After he had left, in the early morning hours of July 19, the victim made her way to the home of a friend who lived nearby, where she remained until later in the forenoon when the police were notified and the victim treated in a local hospital.
The Appellate Division affirmed the conviction for sodomy but reversed the rape conviction for the reason that the trial judge did not, either in his charge or at any other point during the trial, instruct the jury that evidence of defendant's prior criminal convictions, which had been introduced, must only be considered by the jury upon the issue of credibility and for no other purpose.
Evidence of prior criminal convictions may be introduced for the purpose of impeaching the credibility of anyone who testifies, including a defendant in a criminal trial who offers himself as a witness. N.J.S.A. 2A:81-12. Such evidence may not, however, be considered or taken into account in determining the defendant's guilt of the offense for which he is being tried. State v. Sinclair, 57 N.J. 56, 62-64 (1970); State v. Manley, 54 N.J. 259, 269-270 (1969); State v. Hawthorne, 49 N.J. 130 (1967). A limiting instruction to this effect should be given by the trial court. Evidence Rule 6. Here this was not done. Defendant's counsel, however, did not request that the court include such an instruction in its charge nor was any objection or exception taken to its omission. The point came before
the Appellate Division -- as it now comes before us -- as plain error.
Thus the issue is whether this failure to charge or otherwise instruct the jury was "clearly capable of producing an unjust result," under R. 2:10-2, commonly known as the "plain error" rule, or whether it may fairly be considered harmless error, lacking the capacity to prejudice the defendant. After a very careful study of the entire record we have reached the conclusion that the error did not require a reversal. We base this decision very largely upon the overwhelming nature of the testimony pointing to defendant's guilt and the relative insignificance of the testimonial references to his prior convictions. His own narrative of the events, uncorroborated in any way and essentially implausible, included the admission that he had had normal sexual relations with the victim, although he insisted this had been with her consent. Upon being faced with an inculpatory statement made by him shortly after his arrest, he in effect admitted the acts of sodomy. That the trial judge concurred in the result reached by the jury is apparent from his remarks in denying a motion for a new trial. As we have said, no conclusion other than guilt seems tenable on this record, leaving aside all reference to defendant's past convictions.
Where a failure to inform the jury that evidence of prior convictions must be limited solely to the issue of credibility is urged as plain error, courts have not hesitated to sustain convictions where no real prejudice can be shown. United States v. Carter, 401 F.2d 748, 750 (3rd Cir. 1968), cert. den. 393 U.S. 1103, 89 S. Ct. 905, 21 L. Ed. 2d 797 (1969); Nutt v. United States, 335 F.2d 817, 818-819 (10th Cir. 1964), cert. den. 379 U.S. 909, 85 S. Ct. 203, 13 L. Ed. 2d 180 (1964); Commonwealth v. Cook, 351 Mass. 231, 218 N.E. 2d 393, 397 (1966), cert. den. 385 U.S. 981, 87 S. Ct. 529, 17 L. Ed. 2d 443 (1966); People v. Durham, 66 Ill. App. 2d 163, 212 N.E. 2d 765, 768 (1965). But see People v. Camel, 11 Mich. App. 219, 160 N.W. 2d 790 (1968). Cf.
State v. McNair, 59 N.J. Super. 453, 458-459 (App. Div. 1960); State v. Baker, 90 N.J. Super. 38 (App. Div. 1966). We hold that this failure to instruct the jury, presented ...