On appeal from Superior Court of New Jersey, Law Division, Essex County.
Pressler, Bilder and Skillman. The opinion of the court was delivered by Skillman, J.A.D.
Defendant was indicted for felony murder, in violation of N.J.S.A. 2C:11-3a(3); purposeful or knowing murder, in violation of N.J.S.A. 2C:11-3a(1) and (2); conspiracy to commit robbery, in violation of N.J.S.A. 2C:5-2; two counts of armed robbery, in violation of N.J.S.A. 2C:15-1; burglary, in violation of N.J.S.A. 2C:18-2; aggravated sexual assault, in violation of N.J.S.A. 2C:14-2; possession of a handgun without a permit, in violation of N.J.S.A. 2C:39-5b; and possession of a firearm for an unlawful purpose, in violation of N.J.S.A. 2C:39-4a. A jury acquitted defendant of purposeful or knowing murder, aggravated sexual assault and one count of armed robbery, but found him guilty of the remaining charges. The trial judge merged the convictions for conspiracy to commit robbery, armed robbery and burglary into the conviction for felony murder, and sentenced defendant to life imprisonment, with 30 years of parole ineligibility, for the felony murder. The trial judge also imposed concurrent sentences of 5 years, with 2 1/2 years of parole ineligibility, on the conviction for possession of a handgun without a permit, and 10 years, with 5 years of parole ineligibility, on the conviction for possession of a firearm for an unlawful purpose.
The crimes were committed in an apartment in Irvington on April 10, 1983. The occupants of the apartment were the murder victim, Sidney Davis, and his girlfriend, Betty Johnson.
While Davis and Johnson were lying in bed, the doorbell rang. Davis went to the door and met a white man and a black man, who identified themselves as firemen. The men then entered the apartment. The white man wore a black beard, mustache and wig, and a fireman's hat. After the two men gained entry into the apartment, the white man brandished a gun and the black man exhibited a police slapper. The intruders indicated that they intended to rob Davis, who was a drug dealer. The black man then tied Johnson's hands behind her back with a plastic strap and raped her. Afterwards, he dragged her from the bedroom into the living room and ordered the white man to kill both Davis and Johnson. Davis responded by jumping at the white man and struggling for the gun. Two shots were fired during the struggle, killing Davis. The assailants then fled from the apartment, taking a substantial amount of cash with them. A police search of the murder scene revealed a black wig and the handgun used to kill Davis.
Approximately one month later, on May 19, 1983, defendant was found shot in his automobile in Newark. A subsequent police search of the car disclosed two handguns, ammunition, a wig, two mustaches, a beard and a police slapper.
Neither Johnson nor the other witnesses who saw the assailants enter the apartment were able to identify defendant as the white man with the black beard, mustache, wig and fireman's hat. However, Johnson testified that the police slapper found in defendant's car looked the same as the weapon used by the black man in the April 10, 1983 crime. She further testified that the black beard and mustache found in the car appeared the same as the hair on the face of the white assailant. The State also presented evidence of a similar crime committed in Westfield, in which defendant was firmly identified as a participant. In addition, it introduced an inculpatory letter which defendant wrote to the judge originally assigned to preside over the trial.
Defendant argues that evidence of his participation in the Westfield crime violated Evidence Rule 55, which provides:
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.
The Westfield crime was committed at the residence of the Powell family on May 15, 1983, approximately one month after the murder in Irvington. Two white men rang the doorbell of the victims' house and identified themselves as police detectives, exhibiting what appeared to be a police badge. One of the men, later identified as defendant, was wearing a mustache. After gaining entry into the house, the two men pulled out guns. However, defendant slipped on the floor, and Mrs. Powell ran out of the house to call the police. The intruders then fled. Mrs. Powell positively identified defendant as the perpetrator wearing the mustache. She also testified that the mustache worn by defendant was "very similar" to one of the mustaches found in defendant's car when he was shot. In addition, she identified glasses, a gun, a folder containing a badge and a hat found in defendant's car as other items used in the attempted robbery committed in her house.
The trial judge conducted a pretrial hearing pursuant to Evidence Rule 8 regarding the admissibility of evidence of the Westfield crime. The State argued that due to the similarity of the two crimes, evidence of the Westfield crime was admissible to show defendant's identity as one of the participants in the Irvington crime. The trial judge rejected this argument and concluded that the State had failed to show that the modus operandi in the two crimes was sufficiently similar to warrant admission of evidence of the Westfield crime. But the judge pointedly noted that because Ms. Johnson had not testified at the Rule 8 hearing, he had not heard her description of the
"size or shape of the mustache" worn by the white man involved in the Irvington crime. Consequently, the judge concluded that "the descriptions and inferences concerning the use of the mustache at the time of the Irvington offense are not yet sufficiently developed to permit a ruling at this time that Rule 55 testimony is admissible." However, the trial judge indicated that he would be prepared to reconsider this ruling if there were evidence at trial that the same mustache had been used in both the Irvington and Westfield crimes.
At trial, Johnson testified that one of the mustaches found in defendant's car after he was shot looked the same as the mustache worn by the white participant in the Irvington crime. Mrs. Powell identified this same mustache as appearing "very similar" to the one used in the Westfield crime. Based on this additional evidence, the trial judge granted the State's renewed application to present evidence of the Westfield crime. The judge found this evidence "relevant to issues relating to possession of the mustache allegedly found in the defendant's car and its relation to the defendant's possession of that mustache and, ...