STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. RAYMOND F. GARFOLE, DEFENDANT-APPELLANT.
Supreme Court of New Jersey
Argued January 24, 1978—Decided June 1, 1978
76 N.J. 445
For reversal and remandment—Chief Justice HUGHES and Justices MOUNTAIN, SULLIVAN, PASHMAN, CLIFFORD, SCHREIBER and HANDLER—7.
For affirmance—None.
Argued January 24, 1978—Decided June 1, 1978.
Mr. Solomon Rosengarten, Deputy Attorney General, argued the cause for plaintiff-respondent (Mr. John Degnan, Attorney General of New Jersey, attorney; Mr. Benjamin D. Leibowitz, Deputy Attorney General, of counsel and on the brief).
The opinion of the court was delivered by
CONFORD, P. J. A. D. (temporarily assigned). 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,
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 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.1
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 hе 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
The crucial legal issue in this case is the extent to which
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
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, includ-
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 incriminitorily. As indicated above, other-crimes evidence submitted by the prosecution has the distinct capacity of prejudicing the accused.3 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 inno-
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 exculpatory proof, taken in entirety, including the similarity of other offenses relied on, was substantially stronger than the proffer made by defendant below.
In State v. Bock, supra, the defendant was charged with uttering a forged cheсk which had been stolen, along with a checkwriting machine of the drawer company. The suspect had attempted to cash the check on the pretense of purchasing merchandise, and to receive change from the check on the purchase. Over objection of the defendant, evidence was adduced by the State of three similar fraudulent transactions by defendant a month later. The defendant then offered to prove that two other checks of the same company whose check he was accused of uttering, and substantially the same in all respects, were passed during the same time period by a person identified not to be the defendant; also that after defendant was convicted another individual was
In Commonwealth v. Murphy, supra, the defendant was convicted on four complaints of similar occurrences wherein he was alleged to have undertaken to rent apartments from certain women and to have obtained cash from them as change from a forged check. It was conceded that all of these checks were drawn, endorsed and delivered by the same man, and each of the victims identified the defendant. The defendant offered in evidence one check drawn on the same bank and two others drawn on a different bank, all at about the same time, together with evidence of a handwriting expert that both the typewriting and the handwriting upon those checks were identical with those on the four checks on which defendant was charged. Moreover, the circumstances under which the other checks were used were exactly the same as those in the instances alleged against the defendant. It was further proffered that two of the recipients of the other checks would testify that defendant looked somewhat like but was not the man who gave and endorsed the checks to them; and, moreover, in the case of the third other incident, that the defendant was in custody on the date that that check was passed. Furthermore, the defendant had been acquitted on charges with respect to two of the other check incidents.
In Holt v. United States, supra, the defendant was charged on a federal indictment with having transported a stolen automobile from Dallas to Atlanta and with having sold it in Atlanta on the same day, using the name Earl Albert Boyd, and having transported another automobile received in trade for the first one from Atlanta to Dallas. There was evidence that 96 title certificate blanks had been stolen several months previously in Oklahoma. One of those title certificates was used in the transaction by which the first car was sold in Atlanta and another in a sale at Dallas of the car received in trade in Atlanta. Defendant was
In reasoning common to the appellate opinions in each of the three cases just discussed the court in the Bock case said that if an inference that defendant uttered the check for which he was tried was permissible from proof by the State that he passed three others in similar circumstances “there appears to us no good reason why an opposite inference that defendant was not the person who offered [the check for which he was tried] is not permissible from a showing that checks identical with [the latter] were offered or passed on the same day and in a like manner by someone other than defendant.” 39 N. W. 2d at 891.
If no other considerations came into play it might thus well be concluded that defendant‘s proffer of proof, as expanded at the Appellate Division level, was of sufficient probative value to warrant its admission into evidence for appraisal by the jury. But important coordinate factors, highly material to the sound administration of the trial process, require appraisal along with the factor of the degree of relevance of defendant‘s proffered proofs. These are those mentioned in
Defendant‘s proffer, as argued by the State, does create the possibility of undue consumption of time and of danger that the jury might be confused or misled. A trial of defendant‘s guilt of the misfeasances of June 14, 1971 would become expanded into one of determination as to his guilt vel non of each of the four prior occurrences and possibly of the sixth. Defendant‘s proofs of the other occurrences and his tendered alibis for four of them would generate four mini-trials as to the truth of those claims. Each of the victims involved in the four (or five) episodes other than that of June 14, 1971 would be subject to subpoena and possible examination and cross-examination with respect to identification or exculpation of defendant on eaсh such occasion,4 and each such episode would or could become the subject of a separate adversarial contest as to identity.5
Although Rule 4 considerations generally are mentioned in connection with the factor of undue prejudice to the defendant when other-crimes evidence is advanced offensively by the State, see New Jersey Rule of Evidence, op. cit., supra, at 213, and State v. Wright, supra, 132 N. J. Super. at 143, we are clear that it is highly appropriate for a trial judge, confronted with the opposing evidential con-
Accordingly, what is called for in the present case is a highly discretionary determination as to the admissibility of the defendant‘s proffered evidence which weighs and takes into account the degree of relevance of the disputed evidence as against the Rule 4 considerations which militate for rejection of it. Under Rule 4 the criterion is whether the considerations specified therein substantially outweigh the probative value of defendant‘s proffer. This is peculiarly a matter for decision, at least in the first instance, by the trial judge who tried this case. The judge should on the remand take such specific proof from defendant on voir dire as to his purported alibis as defendant wishes to submit so that the judge can be aided in formulating a fair impression of the degree of probative strength of the proffered proofs taken in entirety.6 If the judge‘s ultimate decision is for admission of the evidence he shall then order a new trial; if his decision is for rejection, the judgment of conviction shall stand. Cf. State v. Koch, 118 N. J. Super. 421, 426, 434 (App. Div. 1972). In either case there may be summary review in this Court on notice by the aggrieved party within ten days after entry of judgment. We retain jurisdiction for that purpose.
The cause is remanded to the Law Division for further proceedings conforming to this opinion.
PASHMAN, J., dissenting. While I agree with the majority‘s view that the standard for admitting similar crimes
I. The Effect of the Majority‘s Formulation is to Render Exculpatory Evidence Inadmissible
The Court holds that “... when the defendant is offering that kind of proof exculpatorily, ... simple relevance to guilt or innocence should suffice as the standard of admissibility...” See ante at 452-453. Lest defendant rejoice prematurely, the majority hastens to add “... it is highly appropriate for a trial judge, confronted with the opposing evidential considerations in such a situation as here presented, to weigh in the balance the concern of the law for orderly and efficient administration of the jury process.” See ante at 456-457. Finally, the trial judge is instructed to “weigh” the likelihood that defendant‘s proffered evidence is sufficiently relevant to overcome the risk that the trial would splinter into a series of “mini-trials” relating to uncharged offenses not properly before the jury.
In essence, the Court has determined that while evidence of similar offenses may be introduced by a defendant for exculpatory purposes, this opportunity depends upon the trial judge‘s determining that it is worth the court‘s time to hear it. Given today‘s swollen criminal trial dockets, it will come as no surprise to anyone that such evidence will seldom see the light of day, nor the ears of a juror.
If the majority is concerned about court time and judicial resources to the point of excluding concededly relevant evidence on that basis, it should formulate a more explicit standard which acknowledges this practical impact. Perhaps the trial judge should be called upon to make a preliminary determination as to whether defendant‘s proofs are so highly relevant that they should be admitted without regard to
Close decisions should be made with the knowledge that it is better to err on the side of admissibility, for nothing is so abhorrent as convicting an innocent person. Moreover,
Of course, something more than the most remote possibility of relevance must be shown by defendant. For example, if the only common theme in all of these cases was that several women were molested by someone described as a white male in his thirties, exculpatory evidence that defendant could not have committed four of the six crimes because he was working would not be worthy of admission. However, the fact patterns of the assaults in the instant case are much more similar.
The two-tier test, ante at 459-460, would better impress on trial judges that the exclusion of relevant exculpatory evidence is not to be lightly undertaken. Unlike the majority
II. The Trial Judge‘s Failure to Admit Exculpatory Evidence in this Case was Plain Error
By remanding this case to the trial judge who initially found that exculpatory evidence involving four similar crimes was not even relevant, the majority clearly signals that no new trial should be granted to this defendant. Since he did not find even minimal relevance in this evidentiary offering, the trial judge is not likely to now decide that such an offering is so relevant that it should be admitted despite possible
This defendant was finessed out of a fair trial by an assistant prosecutor who was less than forthright in his representations to the court. Initially, the State was so com-
Shortly before jury selection, the prosecutor asked the judge for a severance of all the grouped counts of the indictment, “in the interest of justice with respect to the defendant.” He eloquently pоinted to the prejudice defendant would face if he were tried for a multitude of similar crimes. As we shall see, these were crocodile tears. Defense counsel was obviously taken by surprise—this position was a complete turnabout by the State. He opposed the motion for severance because the defendant had a strong alibi for four of the six incidents, namely, that he had been at work at the time of their occurrence. The defense counsel was clearly concerned that if all counts were not moved at trial, defendant‘s opportunity to show that he was innocent of the related crimes would be curtailed. His foreboding proved to be well founded.
At first, the trial judge showed some appreciation of defendant‘s dilemma, as he observed that “there did appear to be a common scheme and perhaps so common that it would strongly point to the fact that one person committed these offenses.” Severance was granted only as to the sixth offense which occurred some nine months after the fifth. The controlling consideration by the judge was that the sixth offense was too remote in time from the others to be heard with them.
Immediately thereafter, the prosecutor moved to dismiss all counts arising under the first four incidents, thus limiting the trial to the counts surrounding the fifth offense. He claimed that no witnesses were available for any of those incidents. By then, it should have been unmistakably clear
Naturally, the defense counsel acquiesced in the dismissal of these counts. As Judge Antell‘s dissent in the Appellаte Division correctly points out, the prosecutor‘s motive in seeking a severance must have been to preserve these charges as a club for use in gaining a plea bargain. Any doubt as to the truth of this view was removed with the prosecutor‘s next request. He moved that the court prevent defense counsel from asking any investigative questions concerning the first four incidents, since they were no longer before the court. Despite the fact that all parties were in agreement that the same person probably committed all of these crimes, the prosecutor wanted leave to present his strongest case while at the same time preventing the defense counsel from proving that none of the similar crimes was committed by defendant. So much for his concern that defendant not be unjustly prejudiced.
Despite this unfair cоnduct of the prosecutor, the trial judge refused to decide the issue in a hypothetical stance, preferring to await the concrete propounding of such a question by defense counsel at trial. The prosecutor then requested that a voir dire be held with respect to any proffered question. He then sought a ruling permitting him, under
The judge ruled that a joint trial on two seрarate incidents involves different problems than does admitting evidence from a related, but severed, crime under
If the sixth incident is so similar to the fifth that the exacting standards of
My conclusion is that incidents one through four are as similar to incident five as is incident six. In fact, some of them are much more similar. Without going into undue detail, I note that all of the assaults took place in the evening between 9:45 P.M. and 11:00 P.M. The first five were within a three-month period. The sixth was the only temporally remote incident, yet that very incident was found similar enough to the fifth for
I can only conclude that if the sixth offense was concededly similar enough to the fifth to satisfy the trial judge‘s perception of the showing required by
We are left with a defendant who may well be innocent, and yet not be permitted to present highly probative alibi evidence. The reason for this disadvantage was an erroneous ruling at trial. Closing our eyes to the specific facts of this case simply because the crimеs were distasteful is unjust. It surely appears that the same person committed all of these crimes. It is clear that the first four offenses are not less similar to the fifth than was the temporally remote sixth incident. The trial judge ruled that the last two incidents were more similar than is necessary for admission of evidence of other crimes by a defendant for exculpatory purposes. Thus, I can only conclude that simple justice requires that defendant receive a new trial where he will be permitted to show that he could not have committed the first four offenses. Such a showing might well convince the jury that whoever the common perpetrator of these six despicable offenses was, it may not have been the defendant.
SULLIVAN, J. (dissenting). I agree with the majority opinion that the proffered evidence arguably had a “relevant potential.” Howevеr, I cannot join in the remand to have the trial court make “a highly discretionary determination as to the admissibility of the defendant‘s proffered evidence which weighs and takes into account the degree of relevance
Should this happen and once defendant is permitted to produce evidence as to the happening of these four or five other criminal episodes and then comes forward with proof of alibi for some of them, the State then would have the right either to produce proofs as to their non-similarity, or to present whatever evidence it had connecting defendant with them. The result would be that although defendant was being charged with only one crime involving one victim, the jury at the retrial would be asked to consider numerous collateral issues including similarity or non-similarity of these other offenses, and defendant‘s innocence or guilt as to them even though defendant is not on trial as to these offenses. The danger of confusing the issues and misleading the jury is enormous. Questions as to burden of proof, degree of proof required and instructions to the jury would be only some of the difficulties presented.
Because of these problems, I would not remand to the trial court. Instead I would hold that, conceding that the proffered evidence arguably had some relevant potential, the danger of confusing the issues and misleading the jury is so enormous and so far outweighed the claim of relevancy, that the evidence manifestly should have been rejected under
Justice SCHREIBER joins in this dissent.
For remandment—Chief Justice HUGHES, Justices CLIFFORD and HANDLER and Judge CONFORD—4.
For reversal and remandment—Justice PASHMAN—1.
For affirmance—Justices SULLIVAN and SCHREIBER—2.