Lynch, Milmed and Antell. Antell, J.A.D. (dissenting).
[148 NJSuper Page 128] Defendant was charged in a 41-count indictment with a variety of offenses occurring in Cranford, in Union County, on six different dates between March 13, 1971 and March 27, 1972, viz.: 10 counts (1, 2, 9, 10, 14, 20, 21, 28, 29 and 36) of threatening to take life (N.J.S.A. 2A:113-8); 10 counts (3, 4, 11, 12, 15, 22, 23, 30, 31 and 37) of assault with an offensive weapon (N.J.S.A. 2A:90-3); 5 counts (5, 16, 24, 32 and 38) of carnal abuse (N.J.S.A. 2A:138-1); 5 counts (6, 17, 25, 33 and 39) of assault with intent to commit carnal abuse (N.J.S.A. 2A:90-2); 5 counts (7, 18, 26, 34 and 40) of lewdness (N.J.S.A. 2A:115-1); 5 counts (8, 13, 19, 27 and 35) of possession of a pistol or revolver in a public place without first having obtained the requisite permit to carry the same (N.J.S.A. 2A:151-41(a)); and 1 count (41) of possession of a dangerous instrument in a public place (N.J.S.A. 2A:151-41(c)).
At the opening of trial the prosecutor moved for "a severance with respect to each victim and the various counts involving those particular victims * * *." Defense counsel objected, stating in part:
We have a defense of alibi. Our defense of alibi pertains to all but two of the charges. Our defense is the defendant on the evenings in question in all cases but two incidents was working, working on the railroad in the tower in Jersey City, where it would have been impossible for him to be at 11:00 P.M. and still have committed these crimes in Cranford. However, two of these incidents are days upon which the defendant was off. * * *
The trial judge denied the application for a severance with respect to counts 1 through 35 which covered a three-month period from March 13, 1971 through June 14, 1971. He granted a severance of the remaining counts (36 through 41) which charge the offenses occurring on March 27, 1972. On the prosecutor's motion, and without opposition, the trial judge then dismissed counts 1 through 27. Defendant was tried on counts 28 through 35, which charged him with the offenses occurring on June 14, 1971,*fn1 viz.: threatening to take the life of M (female) (count 28), and the life of T (male) (count 29); assault with an offensive weapon upon M (count 30) and upon T (count 31); carnal abuse of M, age 15 (count 32); assault upon M with intent to carnally abuse her (count 33); lewdness with M (count 34), and possessing a pistol or revolver in a public place without first having obtained the requisite permit to carry it (count 35). The jury found him guilty on counts 28 through 34 (count 33 was merged into count 32) and not guilty on count 35.
Defendant was sentenced as a sex offender on the merged counts (32 and 33) to the State Prison Farm at Rahway (Diagnostic Unit) for an indeterminate term with a maximum of 15 years, to run concurrently with a sentence then being served by him in Monmouth County. On count 34 he
was sentenced to the same institution for a concurrent indeterminate term, with a maximum of 3 years. On each of counts 28 and 29 he was sentenced to the State Prison at Trenton for a term of 8 to 10 years, and on each of counts 30 and 31 he was sentenced to that institution for a term of 3 to 5 years. The execution of these sentences to the State Prison at Trenton was suspended.
On this appeal defendant contends that: (1) "the trial judge committed reversible error when he refused to permit defense counsel to cross-examine officer Deane or present evidence concerning the other crimes charged in the indictment to show that someone other than the defendant committed the crime in question"; (2) "the identifications of the defendant at the lineup were admitted in violation of the defendant's right to counsel"; and (3) "the photographic lineup and incourt identifications of the defendant were so suggestive and unreliable that their admission into evidence violated the defendant's right to due process."
In support of his first contention defendant argues, in part, that
He points out that "[d]efense counsel opposed the [prosecutor's] motion [for a severance] on the ground that the six charges were so similar in character that it was obvious that the same person committed all six crimes, such that if the jury believed the defendant's alibi defense to four of the charges they would have to acquit the defendant of all six charges."
As indicated, the acts charged against defendant in the counts on which he was tried (counts 28 through 35) were disputed by him. He claimed that his identity had been
mistaken. In such circumstances, evidence of other acts by someone other than defendant bearing "a high degree of similarity" to the acts underlying counts 28 through 35 would, if properly offered*fn2 and passed upon beforehand by the trial court, be admissible to prove a pre-existing design, system or plan of such other person which included the doing of the acts charged against defendant in the counts on which he was tried. 2 Wigmore, Evidence (3 ed. 1940), § 304 at 204. See also, id. , at 202, 205 and § 357 at 266-269; State v. Bock , 229 Minn. 449, 39 N.W. 2d 887 (Sup. Ct. 1949); Commonwealth v. Murphy , 282 Mass. 593, 185 N.E. 486 (Sup. Jud. Ct. 1933); Holt v. United States , 342 F.2d 163 (5 Cir. 1965). Where "the effort is to establish a definite prior design or system which included the doing of the act charged as a part of its consummation," there "must be," in regard to the several acts, "not merely a similarity in the results, but such a concurrence of common features that the various acts are naturally to be explained as caused by a general plan of which they are the individual manifestations." 2 Wigmore, op. cit. , § 304 at 202. "The device used must be so unusual and distinctive as to be like a signature." McCormick, Evidence (2 ed. 1972), § 190 at 449. To be admissible, the evidence of other crimes must disclose "a distinctive modus operandi common to both the other crimes and the charged crime." People v. Haston , 69 Cal. 2d 233, 70 Cal. Rptr. 419, 426-427, 444 P. 2d 91, 98-99 (Sup. Ct. 1968). See also, State v. Sempsey , 141 N.J. Super. 317, 323 (App. Div. 1976).
Here, the requisite offer to establish such "high degree of similarity" was not made in the trial court. See 2 Wigmore, op. cit. , § 304 at 205; Evid. R. 8. And see, United States v. Hallman , 142 U.S. App. D.C. 93, 439 F.2d 603, 605 (D.C. Cir. 1971). Noting the absence of a proffer of such
evidence at the trial,*fn3 counsel for defendant on this appeal has applied for an expansion of the record before us to include the statements of the victims in the counts of the indictment which were dismissed, i.e. , counts 1 through 27. He suggests that these statements show the required similarity. We allow the belated effort but find it woefully wanting. From our examination of the statements submitted we are entirely satisfied that the "other like crimes" were not "so nearly identical in method [with the crimes of which defendant was convicted] as to earmark them as the handiwork of" one person, McCormick, op. cit. , § 190 at 449, and that, accordingly, the trial judge did not mistakenly exercise his discretion in rejecting the attempt of defendant's trial counsel to adduce, through cross-examination of officer Deane or otherwise, evidence of the acts involved in the counts of the indictment which were dismissed. See Evid. R. 4. It is undisputed that the May 1, 1971 incident did not involve any sexual acts. Beyond this, none of the other incidents described in the statements submitted by counsel involved, as here, coerced fellatio. Additionally, in the May 12, 1971 incident, when the victim started to cry and then screamed, the attacker "grabbed" her "by the neck with both hands and started to chock [ sic ]" her. And, regarding the May 14, 1971 incident, the victim said that "[t]he man never got violent, he was very gentle."
In his dissent our colleague lays substantial stress upon what he terms a "tripartite consensus" in the trial court that "enough similarity prevailed among the offenses as to establish that they were the work of a single individual." What our colleague refers to as an "accord" was merely a conglomeration of conjectures and surmises. What he overlooks is the fact that there was no evidence before the court on the
subject. Even at this late stage, all we have before us are the statements which have been submitted by counsel for defendant with his application for expansion of the record on appeal, and the undisputed statement by the prosecutor to the court before the trial began that the June 14, 1971 offense and the March 27, 1972 offense*fn4 show "basically the same factual pattern." It appears that as to these two offenses defendant cannot suggest an "alibi." The prosecutor's statement, which as we have said was not disputed, pointed out that:
It is the contention of the State that the offense that occurred on June 14th -- and I represent this at this time -- June 14, 1971 consisted of basically the following fact situation: The victim, [M], was approached by the subject and a gun was taken out by the subject, at which time the subject said don't scream, I won't hurt you, don't be afraid. She was then taken to a park and subsequently molested, a certain procedure of molestation. The weapon was once -- the individuals were once again threatened by the weapon, fellatio was committed during the molestation. At the end of the physical assault itself the defendant said something to the effect -- and this is just general -- forgive me, I need help, I'm sick and I know I'm sick.
Now, on the offense of March 27, 1972 we have basically the same factual pattern. The victim is approached this time with an ice pick. Don't move. I won't hurt you. She's taken down to a cellar stairway apparently and molested at that location; same type of molestation, same factual situation, an apology at the end. Same situation, your Honor. There are identifications in both situations. * * *
We further note that few of the "similarities" which our colleague points out apply to all of the offenses. Thus, in attempting to show "similarities" between some of the offenses, he necessarily accentuates the dissimilarities with the remaining offenses.
We have considered each of the two remaining contentions of defendant in our review of the record submitted on this appeal. We find that each of the issues thus raised by him