On appeal from the Superior Court, Appellate Division, whose opinion is reported at 222 N.J. Super. 602 (1988).
For affirmance -- Chief Justice Wilentz, and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. Opposed -- None. The opinion of the Court was delivered by Stein, J.
Evidence Rule 55 prohibits the introduction into evidence of other crimes or civil wrongs to prove a defendant's criminal disposition as a basis for establishing guilt of the crime charged. The Rule expressly permits such evidence to be admitted to prove other facts in issue, such as "motive, intent, plan, knowledge, identity, or absence of mistake or accident," but admissibility is subject to the trial court's duty to weigh the probative value of the evidence against its capacity for prejudice. State v. Ramseur, 106 N.J. 123, 265 (1987); Evid.R. 4. In this case we consider whether testimony about three alleged incidents of misconduct, factually analogous to the two events for which defendant was indicted, was properly admitted into evidence under Rule 55.
The Appellate Division affirmed defendant's conviction for two counts of official misconduct, N.J.S.A. 2C:30-2(a), and one count of criminal coercion, N.J.S.A. 2C:13-5. 222 N.J. Super. 602 (1988). It concluded that the trial court correctly ruled that testimony concerning incidents of misconduct not the subject of the indictment was admissible under Rule 55. Defendant appeals to this Court as of right on the basis of the dissent below. R. 2:2-1(a). We affirm.
The material facts are set forth in detail in the Appellate Division opinion, 222 N.J. Super. at 605-13, and for our purposes
a brief summary will be sufficient. Defendant, a Westhampton, New Jersey, police officer, was indicted on the basis of two incidents that occurred in January and February 1982. The victim involved in the first incident, Jeanette Potter, was stopped in her car by police officers, including defendant, after visiting a friend in a Mount Holly motel. Potter and her sister were transported to Westhampton police headquarters. According to Potter's testimony, defendant took her statement and then locked himself and Potter in an interrogation room. He informed her that she had been detained in connection with a drug investigation of the friend she visited in Mount Holly, and that he had to search her body for needle marks. Asserting a need to examine her stomach, defendant required Potter to remove her blouse and lower her pants. Defendant stated that if Potter proved she was not a drug addict, he would release her. Defendant's trial testimony was that he recalled arresting Potter, but did not search her or require her to undress.
The victim of the second incident, Jane Ann Petroski, had been issued two traffic tickets in the early morning hours of February 22, 1982. Subsequently, her car ran out of gas. She parked in the Westhampton police station parking lot and used an available outside telephone to call for assistance. Defendant, who had learned of her presence at headquarters through a radio communication, arrived soon afterwards. Petroski testified that defendant initially asked for driving credentials. He then took her inside the station and required that she perform certain balancing tests, presumably to determine sobriety. Defendant informed Petroski that she had failed the tests and would have to be searched. Defendant first directed her to remove her socks and boots, then to expose her breasts, and then to remove her pants, ostensibly to permit defendant to verify that nothing was taped between her legs. He then required her to spread her legs, both from a sitting and standing position. Petroski testified that she submitted to defendant's demands because she was alone and frightened.
She also testified that defendant drove her home, commenting as she left the car: "Don't screw me and I won't screw you." Defendant denied that he had searched Petroski or required her to disrobe.
Later that morning, Ms. Petroski's mother reported the incident to Westhampton Police Chief Russel Minuto. Minuto testified that defendant denied the allegations and insisted that another member of the Westhampton Police Department, Officer Montijo, was present during Ms. Petroski's detention and would confirm defendant's innocence. Officer Montijo testified that he rejected defendant's subsequent request to confirm his account of the incident to Chief Minuto, and informed Chief Minuto that he was not present when defendant interrogated Petroski. Defendant denied that he told Chief Minuto that Officer Montijo was with him, and denied asking Montijo to lie for him.
Defendant was arrested in April 1982 in connection with the Petroski incident and again in May 1982 in connection with his alleged search of Jeanette Potter. Captain Neil Forte of the Burlington County Prosecutor's office testified that on the occasion of defendant's arrest in May 1982, defendant offered to resign from the department or plead guilty to a disorderly-persons offense if Forte would terminate the investigation. Defendant disputed Forte's account of their conversation.
In response to the State's proffer of other-crime evidence, the trial court conducted a pretrial hearing, Evid.R. 8, to determine the admissibility of testimony concerning three other instances of alleged misconduct committed by defendant. The trial court ruled that the testimony was admissible under Rule 55, and that its probative value outweighed any prejudice to defendant. Accordingly, at trial the State was permitted to present evidence of these incidents, which may be summarized as follows:
The first incident occurred in mid-August 1979, approximately two-and-one-half years prior to the events for which defendant
was indicted. At approximately 2:55 a.m., defendant stopped a motorist, Brenda McCabe, and requested her driving credentials. Defendant noted that her insurance identification card was invalid. He removed from her pocket a pack of cigarettes that contained two marijuana joints. Defendant commented that Ms. McCabe was in trouble, and expressed a desire to engage in sexual relations. Defendant instructed Ms. McCabe to follow him to police headquarters, but instead turned down a dirt road. When the cars stopped, defendant entered Ms. McCabe's car and had sexual intercourse with her on the front seat. He then returned the marijuana and released her. At trial defendant denied that the incident had occurred.
The second incident took place during the fall of 1981. Defendant suggested to his patrol partner, Officer Harvey Montijo, that they go look for some "parkers." When they happened upon two young girls, the defendant ordered one to pull her pants down and stopped the other from pulling her pants up. He explained to Montijo that he was looking for weapons and drugs. When Montijo objected, defendant replied that "[i]t comes with the job. It's part of the job and that's some of the fringe benefits of the job." At trial defendant denied attempting to search either girl or asking either to disrobe. He claimed that Montijo never expressed to him any concern about his actions.
The third incident occurred in February 1982, between the dates of the two events for which defendant was indicted. Paula Jones, an assistant restaurant manager at a Howard Johnson hotel, testified that she was confronted by defendant two days after she had stayed overnight at the hotel with a male companion. According to Jones, defendant stated that he saw her drop a bag of marijuana from her purse when he was
in the restaurant two nights earlier. He also claimed to have investigated a complaint of excessive noise at the hotel, and observed her through a window to be unclothed in the presence of two men. He informed her that Chief Minuto had instructed him to call her employer "and tell them what kind of person they had working for them." Ms. Jones testified that defendant told her he had taken care of everything, and that she would not be arrested. She also testified that defendant made suggestive comments intimating a desire to receive sexual favors in return for his assistance to her. Although defendant acknowledged his presence at the Howard Johnson hotel on the date in question, he testified that he was called there to remove an employee. He denied the conversation to which Ms. Jones had testified.
As noted, the trial court ruled that evidence of the three incidents was admissible, concluding that there was clear and convincing evidence that the incidents had occurred and that their probative value outweighed any prejudice to defendant. In accordance with Evidence Rule 6, the trial court instructed the jury concerning the limited relevance of the three events:
Now, what about the other three incidents which we permitted you to hear about? * * * I permitted this, not to show -- and it doesn't show that the defendant is a bad person -- not to show that he was generally disposed to commit these crimes against Potter and Petroski. On the other hand -- and you may not deduce from hearing about these other three incidents that he's a bad person or that he generally was disposed to commit these two offenses. But it's made known to you to show his intent toward Potter and Petroski, or his plan regarding young women coming under his control while he was carrying out his official duty, period. Or, in other words, to show his attitude toward or his ...