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State v. Sempsey

Decided: May 7, 1976.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ROBERT SEMPSEY, DEFENDANT-APPELLANT



Kolovsky, Bischoff and Botter. The opinion of the court was delivered by Bischoff, J.A.D.

Bischoff

Defendant was charged in two multi-count indictments with offenses arising out of his entry into an apartment on September 26, 1973. He was tried and convicted of the following offenses against Miss W as charged in Indictment #189-73S: count 1 -- breaking and entering with intent to rape; count 2 -- breaking and entering with intent to rob; count 3 -- assault with intent to rape; count 4 -- robbery; count 5 -- robbery while armed with a knife; count 6 -- robbery while armed with a gun, and count 7 -- threat to kill. He was also convicted of the following offenses against Miss O as charged in Indictment #190-73S: count 1 -- breaking and entering with intent to rape; count 2 -- breaking and entering with intent to rob; count 3 -- assault with intent to rape; count 5 -- robbery; count 6 -- robbery while armed with a knife; count 7 -- robbery while armed with a gun, and count 8 -- threat to kill. He was sentenced on all counts to terms aggregating four to six years in State Prison.

The State's proofs disclosed that Miss W and Miss O were roommates in an apartment. Miss W testified that she was awakened at about 2:30 A.M. on September 26 by a man leaning beside her bed with a knife at her throat. He said, "Don't move, or you're dead." She described the man as having a stocking over his head holding his hair up. He had a receding hairline and was wearing makeup over his face with either a fake mustache or tape over a real mustache. He turned on the bathroom light. He placed tape, fortified by matchbooks, over her eyes and bound her hands with cord. The tape came off her eyes and, when he removed the stocking before leaving, she was then able to observe that he had long, dark brown, wavy hair. She recognized the intruder from his having been previously employed in the apartment house and identified him in and out of court as the defendant. At the time of the assault he was wearing a navy blue jacket and dark pants and she detected the odor

of grease. She observed him remove money from a pocketbook. He then removed the sheet, lifted her nightgown and removed her underpants, all the time keeping the knife at her throat. He started to molest her. When she told him she had just undergone lung surgery, he stopped and turned his attentions to her roommate. She heard him comment to Miss O that one on dope was unable to achieve an erection and that he would have to stick to robbery. She saw him holding a gun and before he left he tied her legs with a stocking.

Miss O testified that she was awakened at 2:30 A.M. and saw someone leaning over her roommate. When she asked what was going on the intruder, a man, put a knife to her neck and said, "One word and you are dead." He told her to place her head in the pillow and she did so. He then taped her eyes and mouth and tied her hands behind her back. He said he was going to rob them and asked where her pocketbook was located. She told him, he left the room and she heard him rummaging in the apartment. When she later looked in her pocketbook the money in it, as well as other money located in drawers, was missing. He then said he was going "to have one of them." He turned her over, lifted her nightgown, attempted fellatio and when she pleaded with him, he desisted. All the time he held the knife on her stomach. He removed her underpants and attempted to have intercourse but was unable to do so. He blamed his inability to achieve an erection on dope and said he would stick to robbery. He placed something in her hand that felt like a gun and warned them both not to call the police. She was unable to see the intruder during the entire incident and, as he left, he instructed them to count to 30. After he left she observed that the downstairs front window had been broken; it had not been broken when they retired. While the intruder was close to her she detected the odor of grease. As it developed, she knew defendant from his having worked around her apartment as a maintenance man.

I

Defendant's chief assignment of error concerns the admission, over his objection, of the testimony of the witness K. The trial judge ruled that her testimony was admissible under Evid. R. 55 on the issue of identity. Miss K testified that on April 5, 1973 she lived next to a linen company (where defendant worked). At 12.30 A.M. she went into her kitchen and saw a white man there with a gun. She turned to run and he jumped her; they struggled; he threatened to kill her and she ceased struggling. He pushed her down on the bed, unscrewed the lightbulb in the lamp beside the bed and then placed tape over her face and eyes. He started kissing her, attempted intercourse but could not, and therefore coerced fellatio. He wore black pants and a blue denim jacket, smelled of grease, spoke with a soft southern accent and said he was black. He wore something dark on his head which came to a point at the top; it looked like a navy knit hat. He took no money, did not say he was on drugs, did not use a knife and did not have a mustache. Before he left he threw a blanket on the victim, told her to count and stated he would shoot if she moved too soon. Defendant's fingerprints were found on the lightbulb.

Evid. R. 55 provides:

Subject to Rule 47, evidence that a person committed a crime or civil wrong on a specified occasion, is inadmissible to prove his disposition to commit crime or civil wrong as the basis for an inference that he committed a crime or civil wrong on another specified occasion but, subject to Rule 48, such evidence is admissible to prove some other fact in issue including motive, intent, plan, knowledge, identity, or absence of mistake or accident.

It is well-recognized that the "average individual is prone to much more readily believe that a person is guilty of the crime charged if it is proved to his satisfaction that the defendant has committed a similar crime." State v. Hector , 19 Ohio St. 2d 167, 249 N.E. 2d 912, 916 (Sup. Ct. 1969); State v. Harris , 105 N.J. Super. 319 (App. Div.

1969). "When other crime evidence is admitted a jury might tend to think of defendant as a bad person in general and thereby convict him * * * for that reason alone." State v. Wright , 132 N.J. Super. 130, 142 (App. Div. 1974), rev'd 66 N.J. 466 and dissenting opinion adopted. Such evidence has a high potential for prejudice and it is only admissible if it is relevant, tends to prove some fact in issue and "is not received simply to show the general disposition of the defendant to commit crime." State v. Wright, supra at 148. In order for evidence of a prior crime to be admissible on the issue of identity (for which it was offered here) the prior criminal activity with which defendant is identified must be so nearly identical in method as to earmark the crime as defendant's handiwork. The conduct in question must be unusual and distinctive so as to be like a signature, McCormick on Evidence (2 ed. 1972), § 190 at 449, and there must be proof of sufficient facts in both crimes to establish an unusual pattern. 1 Underhill's Criminal Evidence (6 ed. 1973), § 210 at 637; Mosley v. State , 211 Ga. 611, 87 S.E. 2d 314 (Sup. Ct. 1955); Williams v. State , 110 So. 2d 654 (Fla. Sup. Ct. 1959); Tarkington v. State 250 Ark. 972, 469 S.W. 2d 93 (Sup. Ct. 1971); Nester v. State , 75 Nev. , 41, 334 P. 2d 524 (Sup. Ct. 1959); State v. Francis , 91 Ariz. 219, 371 P. 2d 97 (Sup. Ct. 1962).

In this case defendant's presence at the scene of the earlier attack on K was established by his ...


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