Michels, McElroy and J. H. Coleman. The opinion of the court was delivered by McElroy, J.A.D.
[185 NJSuper Page 495] Defendant was indicted on January 20, 1977 for the murder of S.H. on October 6, 1975 (count one) and the murder of S.R. on October 14, 1975 (count two). The charges were tried together before a jury from May 21 through June 16, 1979 and resulted in a mistrial due to jury disagreement. A second trial of the charges was held from September 19, 1979 through October 17, 1979 and resulted in verdicts of guilty of second degree murder on count one and guilty of first degree murder on count two.
Defendant was sentenced to a mandatory term of life imprisonment for the latter conviction, consecutive to sentences already being served. A term of 30 years was imposed for the conviction under count one, consecutive to the sentence given for count two.
Defendant appeals, raising seven main points of error divided into ten sub-issues and arguments. The issue raised in defendant's first point, which challenges the trial judge's ruling permitting "other crimes" testimony (Evid.R. 55), obliges us to reverse and order a new trial. This required action obviates the need to discuss many of defendant's other points. Those issues requiring our further attention will be addressed in the latter part of this opinion. The facts relevant to the crimes for which defendant was tried and to the "other crimes" follow.
The two murders for which defendant was tried and convicted involved female victims. S.H. disappeared on October 6, 1975. She was last seen alive by her husband when he left their residence in Haworth the morning of that day. At about 1 p.m. he spoke to her by telephone. She was seen in her backyard by a neighbor during that afternoon. Mr. H. returned at about 5:50 p.m. and observed his wife's automobile in the garage. The keys to this vehicle were on the driver's seat as were a package addressed to Mrs. H's parents and a key to the house. The house was locked and there were no signs of struggle, disruption or theft. Her absence was unusual. Inquiry of neighbors and a search of the neighborhood failed to disclose her presence. H. notified the local police as to the circumstances.
On October 27, 1975 the body of S.H. was discovered in a wooded area of Valley Cottage, Rockland County, New York, a location about 15 miles removed from her residence. The body was nude, lying face down and covered with sticks and leaves. It was decomposed, with the skeleton exposed in the head and neck area. The face was mummified. Due to the state of decomposition and the action of animals, the buttocks and sexual organs were missing. A female stocking or pantyhose was
wrapped around the neck in the area of the fourth and fifth cervical vertebrae. A stick was entwined in the stocking, apparently to serve as a garrote.
Dr. Frederick Zugibe, Rockland County Medical Examiner, performed an autopsy. He found "fractures of thyroid cartilage and fracture of cornu of the hyoid bone of the neck." Dr. Zugibe determined the cause of death to be "asphyxiation due to ligature strangulation." At trial he opined that death was produced "by a rather unique technique because in addition to the garrote, which was the piece of wood in between the knot that could be twisted, [a] hand would have to be compressing against the neck at the same time." He explained that a fracture of the hyoid bone was common in manual strangulations and such a fracture indicated use of a hand as well as the garrote. The doctor estimated that death occurred about three weeks before the date the body was found.
S.R., the second victim, was single and employed as a receptionist in New York City. She resided in Demarest, New Jersey. On October 14, 1975 she left her place of employment at about 4:45 p.m. and was later observed exiting a bus at about 6:05 or 6:10 p.m. at County Road and Anderson Avenue in Demarest, the place from which she disappeared. This location was but a few blocks from her home. Her body was found on October 28, 1975 in Tallman State Park, Rockland County, New York, a point 12.9 miles from the place where S.H.'s body was discovered.
S.R. was found lying face up, nude, with a pantyhose ligature about her neck. There was evidence indicating that the body had been moved to this location after death. Dr. Zugibe performed the autopsy and estimated the time of death as about two weeks prior to discovery of the body on October 28, 1975. He determined that the cause of death was asphyxiation due to ligature strangulation. There was, as in the case of S.H., a fracture of the hyoid bone and the doctor concluded that this resulted from the use of manual force to the throat accompanied
by use of the stocking ligature. There was evidence of forced sexual penetration.
With respect to both victims Dr. Zugibe was of the opinion that the force used to turn the ligature was applied from the back of the neck and that the techniques used to fracture the hyoid bone were the same. It was his view that in both cases death was caused by ligature, assisted by the hand of the murderer.
Defendant had been convicted of a rape of one B.C. which occurred April 27, 1967 and of attempted robbery of B.M. on March 16, 1971. Although evidence of these crimes was not attempted to be used at the first trial, the State at the second trial proffered proof of them under Evid.R. 55 as going, among other things, to the question of identity of defendant as murderer of S.H. and S.R. Defendant's counsel objected to the proffer and an Evid.R. 8 hearing was held to determine the State's right to utilize, before the jury, the victims of these prior crimes and their testimony as to their experiences with defendant.
B.C. testified that on April 27, 1967, at about 3 p.m., she was alone in her home in Teaneck when defendant came to her door. He was holding a suit in a clear plastic bag, indicated he was from a dry cleaner and was trying to locate a family named Brantley. He asked to use B.C.'s telephone to call his store and check the address. She took him to a telephone in her den. He telephoned but indicated that no one answered. B.C. preceded him out of the room. As she did defendant placed his left arm tightly around her neck with his elbow directly under her chin. He pulled her backwards to a wall where, when she attempted resistance, he used his right hand to punch her in her back. Using his right hand he removed her undergarments and raped her. Defendant kept a tight hold on B.C.'s neck during the rape. He told her he had a gun and if she screamed he would kill her. Defendant asked if she had any money. When she replied that she only had ten dollars in her pocket he did not
further pursue that inquiry. Defendant, having accomplished his purpose, ordered B.C. to go into the bathroom and remain there until he left. She did so and later called the police.
B.M. testified that on March 16, 1971, at about 8 p.m., she drove into her garage at a multiple garden apartment complex in Metuchen. Her garage was a single unit in a group of ten. Suddenly the driver's door was opened and a knife was placed at her throat. She identified defendant as the man who did so. She was told to be quiet or she would be hurt. Defendant entered her car and told her he wanted money. Her pocketbook was between them and she told defendant to "take everything." Defendant paused and then turned out the headlights. She stated that "when he kept pushing, after he turned out the headlights, I felt I knew what he wanted." B.M. kept sliding over to the passenger side of the car, unlocked the door and pushed it open. During this time defendant had his hand over her face "so that I was completely muzzled and choked at the same time." B.M., with the assistance of a court officer, demonstrated for the court using her left hand, a grip described by the court as follows:
THE COURT: Ring finger and index finger to either side of the nose covering the ends, either end of the mouth.
The thumb and little finger under the chin at the throat a few inches below each ear and at a point approximately where the Adam's ...