On appeal from the Superior Court of New Jersey, Law Division, Camden County.
Fritz, Botter and Ard. The opinion of the court was delivered by Ard, J.A.D.
Defendant, an unwed mother, was charged with first degree murder of her son, age two months. The State alleged that she smothered him with a pillow. Tried to a jury, she was convicted of second-degree murder and sentenced to "an indeterminate term in the Reformatory for Women at Clinton not to exceed 30 years."
On appeal she urges as error:
(1) The trial court's charge on "other crimes evidence" was plain error.
(2) Trial court's determination that the former crime of child abuse had been committed was contrary to weight of evidence.
(3) The sentence imposed was illegal.
Defendant first contends that the trial judge's charge on "other crimes evidence" was plain error. In instructing the jury on this evidence the judge said:
Defendant contends that the last two sentences of this portion of his charge to the jury constituted plain error.
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. [Emphasis supplied]
The prosecution sought to admit evidence of prior episodes of child abuse by defendant unconnected with the cause of the
infant's death. This other crimes evidence was offered to prove defendant's intent and to rebut the defense of mistake or accident as the cause of the child's death. See State v. Wright , 66 N.J. 466 (1975), rev'g on dissent, 132 N.J. Super. 130, 147 (App. Div. 1974); State v. Sinnott , 24 N.J. 408, 413 (1957); State v. Atkins , 151 N.J. Super. 555 (App. Div. 1977).
In prosecuting defendant for murder the State was obliged to prove beyond a reasonable doubt that defendant intended to kill her son or to do him serious bodily harm, and that the boy's death by suffocation was not due to an accident or mistake. These are "essential elements of murder." State v. Gardner , 51 N.J. 444, 458-459 (1968).
A previous crime or civil wrong committed by a defendant cannot be used by the State for the purpose of demonstrating that the defendant is a "bad person" who is likely to have committed a subsequent crime. State v. Kociolek , 23 N.J. 400, 419 (1957). The trial judge would have been correct if his words conveyed this principle to the jury. Unfortunately, the language he used was inappropriate for this purpose. To the extent that the trial judge meant that evidence of defendant's prior physical abuse of her child could not be considered in relation to a "substantive" issue in the case, i.e. , intent, absence of mistake or accident, the judge erred. But this alleged error was favorable to defendant, it did not prejudice her. By giving this charge the court diluted the State's contention that this evidence might be utilized by the jury in determining defendant's motive, intent or the absence of mistake or accident. At the very least, we do not conceive this to be an error "of such a nature as to have been clearly capable of producing an unjust result." R. 2:10-2.
An additional problem relating to the "other crimes evidence" is present. In determining the admissibility of the evidence offered under Evid. R. 55, the judge held a hearing out of the presence of the jury pursuant to Evid. R. 8. After a plenary hearing, the judge ruled that evidence
of prior episodes of child abuse was admissible. He further articulated that the standard of proof he used in determining whether these prior events did in fact occur was by "the clear and convincing doctrine." Defendant now contends that the trial judge's utilization of this standard was error. We disagree.
Although we have found no New Jersey cases directly on point,*fn1 we are satisfied that the court utilized the correct burden of proof standard. In State v. Hughes , 102 Ariz. 118, 426 P. 2d 386 (Sup. Ct. 1967), the court ...