Matthews, Fritz and Botter. The opinion of the court was delivered by Botter, J.A.D.
Defendant was found guilty in a jury trial of rape (N.J.S.A. 2A:138-1) and armed robbery (N.J.S.A. 2A:141-1, N.J.S.A. 2A:151-5). He was sentenced to New Jersey State Prison for a period of seven to ten years on the rape conviction, with a concurrent term of four to six years on the robbery conviction and a term of one to two years for being armed, consecutive to the sentence imposed for the rape.
Three points are raised on this appeal. The first, which was not raised below, is that the trial judge erred in charging the jury that they could consider the omission of a material factual assertion in a statement given to the police by the complaining witness only for the purpose of affecting the credibility of the witness. The second point is that the court improperly made the sentence on the conviction for being armed consecutive to the rape conviction although the indictment did not charge the commission of rape while armed but only charged the commission of robbery while armed. Lastly, it is contended that the trial judge improperly imposed a State Prison sentence rather than a sentence to the Youth Correctional Institution Complex.
The complaining witness, G.T., a 25-year-old student nurse and "minister in holiness," testified that she was robbed and raped at gunpoint by defendant. She said that she was able to see defendant's face during the course of the robbery, but that after he ordered her to unclothe he tied her dress around her head so she could not see. On cross-examination, however, she testified that during the rape she pretended that she could not breathe and that her assailant removed the dress, enabling her to observe his face thereafter. She had not testified on direct examination to the removal of the dress from around her head, nor was this included in the statement that she gave to the police one day after the rape. Referring to this omission, the trial court charged the jury as follows:
Now, evidence showing that at a prior time a witness has failed to say something which is inconsistent with the witness's testimony at
trial may be considered by you for the sole purpose of adjudging the witness's credibility. In other words, this may simply go to her credibility if you find that it should go to her credibility at all. * * *
At any rate, you will have to consider the importance, whether this is important and whether it does go to the witness's credibility and the extent to which it does go to the witness's credibility if you find it does go to her credibility at all.
So that the weight and the application of this prior omission, if you find it in fact to have been an omission, is for you to determine.
No exception was taken to this part of the court's charge and we are asked to consider it plain error. State v. Macon, 57 N.J. 325 (1971).
Prior to the adoption of the Rules of Evidence in September 1967 New Jersey followed the prevailing, traditional view that a prior inconsistent statement cannot be offered as substantive evidence of the facts stated, that is, as proof of the matter asserted therein, but can be offered only for the purpose of impeaching the witness. State v. Laws, 50 N.J. 159, 177 (1967), mod. o.g., 51 N.J. 494 (1968), cert. den. 393 U.S. 971, 89 S. Ct. 408, 21 L. Ed. 2d 384 (1968); Goglia v. Janssen Dairy Co., 116 N.J.L. 396, 397 (E. & A. 1936); State v. Salimone, 19 N.J. Super. 600, 608-609 (App. Div. 1952), certif. den. 10 N.J. 316 (1952); Kulinka v. Flockhart Foundry Co., 9 N.J. Super. 495, 500-501 (Cty. Ct. 1950), aff'd sub nom. Bujalski v. Flockhart Foundry Co., 16 N.J. Super. 249 (App. Div. 1951), certif. den. 8 N.J. 505 (1952); see Link v. Eastern Aircraft, etc., Gen'l Motors Corp., 136 N.J.L. 540 (E. & A. 1948), and State v. D'Adame, 84 N.J.L. 386, 395-397 (E. & A. 1913); 3A Wigmore, Evidence (Chadbourn rev. 1970), § 1018 at 995-998; McCormick, Evidence (2 ed. 1972), § 34 at 67, § 251 at 601. Under that rule: "Contradictory statements are admissible solely to impeach the witness and for no other purpose. They are ineffective as direct and affirmative proof of the facts to which they relate." Goglia v. Janssen Dairy Co., supra, 116 N.J.L. at 397. As such, a limiting instruction was required. McCormick, supra, n. 62 at 601; see also State v. D'Adame, supra, 84 N.J.L. at 397, and United
States v. Lipscomb, 425 F. 2d 226, 227 (6 Cir. 1970), both referring to the general rule but dealing specifically with evidence admitted solely for the purpose of ...