For remandment -- Chief Justice Hughes, Justices Clifford and Handler and Judge Conford. For reversal and remandment -- Justice Pashman. For affirmance -- Justices Sullivan and Schreiber. The opinion of the court was delivered by Conford, P.J.A.D. (temporarily assigned). Pashman, J., dissenting. Sullivan, J. (dissenting). Justice Schreiber joins in this dissent.
A dissent in the Appellate Division, 148 N.J. Super. at 134, brings this appeal by defendant from his criminal conviction before the Court as a matter of right, R. 2:2-1(a). The dissent was confined to the issue of the rejection by the trial court of certain other-crimes evidence offered by defendant. This Court denied certification to defendant with respect to his claim of improper evidence of identification, both prior to trial and in court -- an issue on which the Appellate Division was unanimous against defendant. 75 N.J. 12 (1977). We have examined the identification issue on its merits and conclude it lacks substance. In considering that issue we are not to be understood as necessarily holding that there is an appeal as of right as to an issue on which the Appellate Division is unanimous.
Defendant was convicted at a jury trial in March 1974 of threat to take life, assault with an offensive weapon, carnal abuse and lewdness, all allegedly committed in the course of a single episode on June 14, 1971 when an assailant accosted a sixteen year old boy (T.F.) and a fifteen year old girl (M.W.), threatened both and sexually molested
the girl. Defendant had been indicted also on charges arising out of five other comparable episodes, four of them on March 13, May 1, May 12 and May 14, all in 1971, and one on March 27, 1972. The charges arising out of the first four episodes were dismissed on motion of the State at the outset of this trial, apparently because the witnesses in those incidents were either unable to identify defendant or unwilling to undergo the experience of testifying in the matters. The gravamen of the ground of appeal to the Appellate Division which presently concerns us is the trial court's rejection of defendant's attempt at trial on cross-examination of a prosecution police witness to develop the facts concerning each of the four criminal episodes prior to that related to the instant trial. This attempt was for the purpose of establishing by the similarity of the conduct of the assailant in each incident that one person was responsible for all of them and that defendant was not that person because he had an alibi for all but two of the occasions involved.
The trial judge rejected the defendant's proffer summarily on the prosecutor's objection based on irrelevancy to the charges on which defendant was being tried. The judge stated that only if the prosecutor adduced other-crimes evidence against the defendant to establish his identity would he allow alibi evidence by defendant as to such other crimes. The Appellate Division affirmed, not on the rationale of irrelevancy but on the ground that the acts of the assailant or assailants in the several occurrences were as a matter of law not sufficiently similar to establish that one person was the perpetrator in all. 148 N.J. Super. at 131. This ruling was made after the court granted defendant's motion to expand the record on appeal to include the statements given to the police by the victims in the first four episodes.*fn1
As to the fifth incident, that for which defendant was tried, he was unequivocally identified as the offender by the victim M.W. both in a lineup conducted September 14, 1972 and in court. The male victim T.F. could not make a definite identification either at the lineup or in court because the "body" was "different" but he said the face was the same. T.F. said defendant on both the occasion of the lineup and at trial was not as heavy as the assailant and his hair was a different color. The evidence was that the assailant held a gun to the youths, forced T.F. to turn aside, threatened to shoot him when he protested the treatment of the girl, and said he did not wish to rape the girl but only to "feel" her. He then required M.W. to remove her clothing, inserted his finger into her vagina, made her touch his penis and compelled her to perform fellatio on him. There was no sexual penetration. After the assault the man apologized and said he was sick.
An ample description of the details of the other incidents in question will be found in the opinions delivered by the Appellate Division judges and need not be repeated here. See 148 N.J. Super. at 132, 133, 139-140. The majority opinion emphasizes the differences and the dissenting opinion the similarities in the respective occurrences and attendant circumstances. In addition to the close time sequence of the first five episodes, it is to be noted that all but one occurred within the vicinity of the Cranford Junior High School and the other a half mile away. All the incidents transpired between 9:45 P.M. and 11:00 P.M. Defendant represented to the court that he would show that on four of the occasions he was at work for the Central Railroad in Jersey City at 11:00 P.M. He had no alibi for the date
of the incident tried as he was off duty that night. Defendant did not testify in his own defense.
The crucial legal issue in this case is the extent to which Evid. R. 55 and the decisions expounding it in the context of use of similar other-crimes evidence by the State against an accused are applicable when a defendant seeks to use such evidence for purposes of exculpation. The trial judge apparently thought such evidence when proffered by a defendant to be completely without relevance; the Appellate Division majority required the proof to meet the same "high degree of similarity" of offenses as is applicable when offered by the State. 148 N.J. Super. at 141. We differ with the views of both tribunals in these respects.
Evid. R. 55 prohibits the evidential use of the commission of crime by an accused on another occasion "to prove his disposition to commit" the crime for which he is being tried. However, "such evidence is admissible to prove some other fact in issue including motive, intent, plan, knowledge, identity, or absence of mistake or accident." The manifold kinds of situations in which other-crimes evidence is admissible on behalf of the State notwithstanding the primary exclusionary intent of the rule are well and thoroughly canvassed in the majority and dissenting opinions in State v. Wright, 132 N.J. Super. 130, 147 (App. Div. 1974), reversed on the dissent, 66 N.J. 466 (1975). See also State v. Kociolek, 23 N.J. 400, 418 (1957); Report of the New Jersey Supreme Court Committee on Evidence (1963) 101-104; New Jersey Rules of Evidence (1972) 211-225. Central to the issue implicated by the approach of the Appellate Division to defendant's proffer of proof here is the consideration that the exclusionary aspect of Evid. R. 55 is not founded upon the absence of any probative value of other-crimes evidence -- indeed such value may be very high -- but rather its undue psychological effect with a jury against a defendant. New Jersey Rules of Evidence, op. cit. supra, at 212. The law demurs at permitting a defendant to be convicted for a specific crime merely because his commission
of crimes in the past shows him to be a bad person or having a propensity to commit crime. Ibid; McCormick, Evidence 447 (2d ed. 1972); State v. Sempsey, 141 N.J. Super. 317, 322 (App. Div. 1976) certif. den. 74 N.J. 272 (1977); State v. Wright, supra, 132 N.J. Super. at 142.
We may readily dispose of the merits of the State's objection at trial, sustained by the trial court, that defendant's proffer of other-crimes evidence was objectionable because not relevant to guilt of the offense under trial. The evidence clearly had a relevant potential when coupled with the offer to establish an alibi for some of the other criminal episodes. McCormick points out that the prosecutor may offer proof of other crimes by the accused "so nearly identical in method as to earmark them as the handiwork of the accused"; op. cit. at 449. See also United States v. Cavallino, 498 F.2d 1200, 1206-1207 (5 Cir. 1974) and People v. Matson, 13 Cal. 3d 35, 117 Cal. Rptr. 664, 528 P. 2d 752, 755 (Sup. Ct. 1974) (both describing the principle as the "modus operandi" rule). The same concept of relevancy which justifies submission of other-crimes evidence by the State supports it when proffered by the defendant. Therefore, as will be seen hereinafter, the question here is not relevance as such, but the degree of relevance balanced against the counter considerations expressed in Evid. R. 4 of undue consumption of time, confusion of the issues and the misleading of the jury.
As noted above, the basis of the Appellate Division's affirmance was the supposed insufficiency of similarity of the series of offenses relied upon by defendant. In this regard the court imposed upon the defendant the same standards of degree of similarity of the several incidents as would apply if the offer of evidence was by the State. It required that "the device used [in the prior crimes] * * * be so unusual and distinctive as to be like a signature," citing authority applicable to efforts by the prosecutor to establish by other offenses by the defendant that all, including
the charge being tried, were committed by the accused. 148 N.J. Super. at 131.*fn2
We are of the view, however, that a lower standard of degree of similarity of offenses may justly be required of a defendant using other-crimes evidence defensively than is exacted from the State when such evidence is used incriminatorily. As indicated above, other-crimes evidence submitted by the prosecution has the distinct capacity of prejudicing the accused.*fn3 Even instructions by the trial judge may not satisfactorily insulate the defendant from the hazard of the jury using such evidence improperly to find him guilty of the offense charged merely because they believe he has committed a similar offense before. Therefore a fairly rigid standard of similarity may be required of the State if its effort is to establish the existence of a common offender by the mere similarity of the offenses. State v. Sempsey, supra, 141 N.J. Super. at 323. But when the defendant is offering that kind of proof exculpatorily, prejudice to the defendant is no longer a factor, and simple relevance to guilt or innocence
should suffice as the standard of admissibility, since ordinarily, and subject to rules of competency, an accused is entitled to advance in his defense any evidence which may rationally tend to refute his guilt or buttress his innocence of the charge made. See Evid. R. 1(2). The application of a modified requirement of relevancy to the proffer by a defendant is additionally justified by the consideration that the defendant need only engender reasonable doubt of his guilt whereas the State must prove guilt beyond a reasonable doubt.
It is well established that a defendant may use similar other-crimes evidence defensively if in reason it tends, alone or with other evidence, to negate his guilt of the crime charged against him. 2 Wigmore, Evidence (3d ed. 1940) § 304 at 205; § 341 at 245; Holt v. United States, 342 F.2d 163 (5 Cir. 1965); 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). In each of the cited cases refusal of a trial court to admit such proof by a defendant resulted in an appellate reversal. But in each the probative force of the ...