Carton, Crahay and Handler. Crahay, J.A.D. (dissenting).
Defendant Walter Grossmick appeals from his convictions for threatening to kill (N.J.S.A. 2A:113-8) and assault with intent to rape (N.J.S.A. 2A: 90-2). He had been acquitted of the charge of rape (N.J.S.A. 2A:138-1), and his conviction for lewdness (N.J.S.A. 2A:115-1) was set aside upon a motion for judgment of acquittal.
It is argued that the trial judge committed reversible error in denying defendant's request for a continuance based upon the disclosure to defense of the existence of a fresh complaint witness on the day before trial. We disagree.
The judge denied that motion upon the assurance that defense counsel would have ample time in which to investigate and speak with the witness. Defendant had a reasonable time in which to investigate the witness' reputation for truth and veracity in the community. She did not take the witness stand until the middle of the third day of trial. Defense counsel did not further indicate that he was still dissatisfied with his investigation of this witness.
Defendant also contends that the trial judge erred in ruling that six-year-old Donna Grossmick was incompetent to testify on behalf of the defense, although she was an alleged eyewitness to the incident. Where an infant is offered as a witness, the general purpose of the inquiry is to determine the capacity of the child to give evidence, i.e. , whether there is sufficient discernment and comprehension to invest the testimony with probative worth. State v. Walton , 72 N.J. Super. 527, 532 (Law Div. 1962). Capacity in this sense involves the ability to understand questions and to frame and express intelligent answers as well as a sense of moral responsibility, a consciousness of the duty to speak the truth. Id.
Donna Grossmick was four years old at the time of the sexual assault. At the time of trial she was six. The judge found Donna incompetent to testify on the ground that she was not "capable of expressing herself" or understanding the questions that were going to be propounded to her. The judge felt that the infant was especially immature -- he had the impression that she was a "little baby girl" who lacked the requisite mental capacity (i.e. , recollection and communication). We are therefore satisfied that the trial judge presented ample support for his decision that the child was not a competent witness.
A further argument is made that defendant was unduly prejudiced by a reference that he had been placed on "psychiatric probation" in connection with a prior conviction. We find no merit in this contention, especially in light of the judge's instruction to the jury. We similarly find no merit to the additional contention that the jury improperly and unfairly was informed of a prior municipal court conviction. Although defendant was asked on cross-examination as to convictions of any other crimes, there is no basis for the assertion that the jury was made aware of the municipal court conviction.
Defendant asserts that he is entitled to a reversal on the grounds of cumulative error and that the verdicts were against the weight of the evidence. The asserted errors did not singly or together engender prejudice of a magnitude to justify reversal. And, there was, upon our review of the record, ample evidence to establish beyond a reasonable doubt that defendant had threatened to kill his victim by intentionally conveying to her by his words menace and fear. There is similar evidential support of the assault upon the girl with the intent to inflict forceful corporal injury and to have intercourse with her forcibly and against her will.
CRAHAY, J.A.D. (dissenting). I am not content from my review of the record that defendant had a full and fair
trial in this case. While the record contained sufficient proof to support the jury's verdict, the evidence cannot in my reading of it be labeled strong and convincing. The case was at best close. The record need not be fully detailed but some recitation of the facts appears warranted.
The complaining witness against defendant was a 16-year-old girl, E.K. While I recognize that the determination of the credibility and weight to be assigned to it was for the jury, I must note that I found it to be weak and contradictory in many areas.
E.K. testified essentially that for some time she had been a babysitter for defendant's family and that on the day of the alleged occurrence she accompanied defendant and others to see a pony which he had recently purchased for his children. After doing so, the party went to a bar and several hours later, at the instance of defendant's daughter Donna, age four, they returned to the stable. The second visitation was made by a party consisting of Donna, E.K. and an "older person" -- Pappy Shelton. Defendant's wife remained at the bar. (Between the two stable visits E.K. may have had between one and five drinks of vodka. She claimed not to be "high at all".)
At the stable E.K. tried riding the pony but fell off, scraping her hand. The pony was put in the stable and Pappy Shelton left the scene.
According to E.K., defendant entered the stable and committed the acts which generated the indictment. As a result of the affray she claimed that her arms and hands were injured and bloodied. During that incident E.K. testified that Donna was in the stable and "She was like in front of us behind the fence like thing. Behind the fence with the horse." When asked if there were doors or openings in the fence, E.K. responded -- "I don't remember if there was a door because Donna was crawling in and out of part of the broken fence."
E.K. testified that during the assault upon her Donna "came back a few times and he ...