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State v. Cavallo

Decided: February 17, 1982.


On certification to the Superior Court, Appellate Division.

For affirmance -- Chief Justice Wilentz and Justices Pashman, Clifford, Schreiber, Handler, Pollock and O'Hern. For reversal -- None. The opinion of the Court was delivered by Pashman, J.


[88 NJ Page 511] Defendants Michael Cavallo and David Murro were indicted by the Hunterdon County grand jury for abduction, N.J.S.A. 2A:86-1, sodomy, N.J.S.A. 2A:143-1, private lewdness, N.J.S.A. 2A:115-1, and rape, N.J.S.A. 2A:138-1. The indictments arose out of an incident on June 16, 1977 involving defendants and S.T., the alleged victim, a married woman who was two months pregnant. S.T. states that she was abducted from a Hunterdon bar and raped by defendants who in turn assert that she

willingly accompanied them from the bar to engage in consensual sexual activity. Since there were no witnesses, the trial necessarily focused on the credibility of the conflicting descriptions of those events.

At trial, defendant Cavallo sought to offer the expert testimony of Dr. Kuris, a psychiatrist from the Hunterdon Medical Center. This witness was offered as an expert character witness who would testify that Cavallo does not have the psychological traits of a rapist. The offer of proof, as it appears in the transcript, is as follows:

MR. SKOWRONEK: Your Honor, he is going to testify as to Mr. Cavallo's character which is that he knows right from wrong, that he is a well-meaning individual, he would not wilfully do a wrong, he recognizes the force and violence of rape are wrongful acts, he is a non-violent, non-aggressive person and he will also testify to the fact that the physical or the characteristics exhibited by rapists in his experience as a psychiatrist are these people experience as a psychiatrist are these people are aggressive, violent people and that Mr. Cavallo does not fit within this mold.

The trial judge refused to allow the expert testimony. The sole issue on this appeal is the correctness of that ruling under Evidence Rules 47 and 56. We hold that the trial judge properly excluded the expert character testimony.


The parties agree that some time after midnight on June 16, S.T. went to the Pittstown Inn, a bar near her home. While there, she met and conversed with defendant Murro who invited S.T. to smoke some marijuana with him and his cousin Cavallo in Cavallo's car. S.T. accepted and the three left the bar for the parking lot. Thereafter, the parties differ sharply as to what happened that night.

According to S.T., instead of smoking marijuana in the car with her as she had expected, defendants stated that the marijuana was located at Cavallo's house approximately two miles away. S.T. agreed to go with them to Cavallo's house. Instead, defendants drove her to an empty field where they raped her, forcing her to engage in various sexual acts with them without her consent. Finally, they returned her to the parking lot at the Pittstown Inn.

According to defendants, they and S.T. drove around for approximately 15 minutes smoking marijuana. As Cavallo was driving, S.T. and Murro began to embrace. They then drove to an empty field, where S.T. and Murro engaged in sex in the back of the car. S.T. then invited Cavallo to join them, whereupon the three of them engaged in consensual sexual activity with S.T. as a willing partner. Defendants then drove S.T. back to the Pittstown Inn.

After returning to the bar, S.T. immediately drove home. She and her husband then went to police headquarters at 2:45 that morning to report the alleged rape. From there, S.T. was taken to Hunterdon Medical Center.

Defendants were indicted and pleaded not guilty to all charges. After a jury trial, they were convicted of rape, abduction and private lewdness, and acquitted of sodomy. Murro's motion for a new trial was denied. He was sentenced to three to seven years for abduction, two to three for lewdness and twelve to twenty for rape, all consecutive, for an aggregate of seventeen to thirty years. Cavallo was sentenced to consecutive terms of three to five years for abduction, one to two for lewdness and ten to twenty for rape, for an aggregate of fourteen to twenty-seven years.

Defendants filed a joint appeal from their convictions and sentences challenging the exclusion of Dr. Kuris' testimony and raising various other claims. The Appellate Division, in an unpublished per curiam opinion, affirmed the convictions. However, it held the sentences to be manifestly excessive and remanded to the Law Division for resentencing. On remand, each defendant was sentenced to ten to fifteen years on the rape charge and to lesser concurrent sentences on the other two counts.

The Appellate Division held the proffered expert testimony inadmissible under Rule 47, which governs admissibility of character evidence. While Rule 47 permits some types of expert character evidence, the Appellate Division stated that "the rule

could not contemplate testimony of the kind proffered in this case." The court noted that admission of this testimony could divert the attention of the jury from factual guilt or innocence to the defendants' propensities.*fn1

We granted defendants' petition for certification, 87 N.J. 370 (1981), on the issue of the admissibility of Dr. Kuris' testimony, and now affirm.


Dr. Kuris' testimony is offered as expert opinion evidence of Cavallo's character under Rule 47, which provides:

Subject to Rules 48 and 55, a trait of character offered for the purpose of drawing inferences as to the conduct of a person on a specified occasion may be proved only by: (a) testimony in the form of opinion, (b) evidence of reputation, or (c) evidence of conviction of a crime which tends to prove the trait. Specific instances of conduct not the subject of a conviction of a crime shall be inadmissible. In a criminal proceeding, evidence offered by the prosecution of a trait of character of the defendant on trial may be admitted only if the judge has admitted evidence of good character offered by the defendant. Character evidence offered by the defendant may not be excluded under Rule 4. The credibility of a character witness testifying on behalf of the defendant may not be impaired by an inquiry into his knowledge of the defendant's alleged criminal conduct not evidenced by a conviction.

This rule, adopted in 1967, amended the prior New Jersey practice by allowing a trait of character to be proved by opinion as well as reputation evidence. This amendment permits both lay and expert opinions. The rule does not exclude expert opinions and the comment explicitly includes them. However, while allowing expert character evidence, Rule 47 clearly contemplates that such testimony must qualify as proper expert evidence:

This type of evidence is now admissible provided that a proper foundation is laid for the expert's testimony. If the court feels that a witness does not have sufficient expertise to give expert testimony as to character or that the opinion

offered does not satisfy the requirements of Rule 56(2), the opinion evidence may be excluded. [State Rules of Court Review Commission, New Jersey Rules of Evidence, Rule 47, comment 4]

See Report of the Supreme Court Committee on Evidence (1963) at 92-93 (discussing the issue of expert character testimony and concluding, on balance, that such testimony should be admitted if a proper foundation is provided). We therefore hold that after a proper foundation has been laid, expert opinion character testimony is admissible under Rule 47, subject to Rule 56(2).

The State argues that the proffered evidence is irrelevant, since regardless of whether Cavallo has the characteristics of a "rapist," he may indeed have committed rape on this particular occasion. However, this is not the standard for relevance under our rules. The State's argument would render virtually all character testimony, lay or expert, irrelevant and inadmissible. That argument addresses the weight to be accorded the testimony rather than its relevance.

Rule 1(2) defines relevant evidence as "evidence having any tendency in reason to prove any material fact." New Jersey case law both before and after the promulgation of the rule defines the test to be whether the evidence "renders the desired inference more probable than it would be without the evidence." State v. Deatore, 70 N.J. 100, 116 (1976) (Hughes, C.J., writing for himself and Mountain, J.); Hagopian v. Fuchs, 66 N.J. Super. 374, 384 (App.Div.1961). See McCormick on Evidence ยง 185 (2d ed. 1972). The inquiry is whether knowledge that Cavallo does not possess the traits commonly found in "rapists" increases the likelihood that Cavallo did not commit a rape on the occasion in question. For purposes of determining relevance, we treat the proffered testimony as reliable. Obviously, inaccurate testimony, lay or expert, has no tendency to prove any material fact.

Viewed from that standpoint, the testimony is clearly relevant for the same reason that all ...

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