State v. HarrisState v. Harris
Defendant was indicted, tried and found guilty by a jury of rape (
I.
Defense counsel at no time objected to the prosecutor‘s remarks in summation. However, he claims plain error under
We need deal with only the second of the two comments made by the prosecutor which defendant characterizes as a “glaring appeal to bias and prejudice.” Referring to the testimony of the victim, he said
“* * * She was under great tension. I am convinced now that that is no act; she was in fear of her life and I think if your wife or your sister or your daughter would be subjected to that [her testimony had been that defendant had threatened to kill her when she screamed], that any woman would be fearful of death itself and I think any woman would do the same as this woman did. She thought she would have been killed or something. Consider that if it were your daughter or your wife or your sister or anyone, whether they would not have done what this woman did.”
While this was an emotional projection of the prosecutor‘s argument that the victim‘s testimony was worthy of credence, we cannot say that in the entire circumstanсes of the case it amounted to plain error within the meaning of the rule. Our courts have recognized that a prosecutor often presents his case graphically and forcefully, and that it is “unreasonable to expect that criminal trials will be conducted without some show of feeling.” State v. Johnson, 31 N.J. 489, 510 (1960).
II.
On redirect examination, the prosecuting attorney asked the victim, “Just to sum this whole thing up, Mrs. [A], were you raped that night?” The answer was, “Yes.” Defense counsel objected because the question was not proper redirect. The court permitted the question and answer to stand. The matter was in the court‘s discretion, and we see no abuse.
Defendant complains that the court erred in permitting Police Sergeant Ike to testify as to certain photographs he had taken of the scene of the rape shortly after the crime
Error is also claimed in permitting Sergeant Daher to testify as to his investigation into the ownership of a gold watch found in the garage, and that as a result of this investigation he obtained a warrant to arrest defendant. We consider the objection to be without merit.
At the trial defense counsel objected when Alice Saldutti, a clerk in a Newark jewelry store, was called as а rebuttal witness and permitted to testify that she was in charge of watch repairs and that the gold watch found in the garage had been brought to the store for repair on May 3 and May 31, 1957 by a Richard Harris, 23 Hollywood Avenue, East Orange. The address is admittedly the residence of defendant and his family. The ground of objection to her testimony was that her name had not been submitted in answer to the demand for the names and addresses of all witnesses upon whom the State intended to rely to establish defendant‘s presеnce at the scene of the crime.
Defendant had testified that he had never owned, possessed or seen the watch in question. The trial judge specifically admitted the testimony of Miss Saldutti for the sole purpose of contradicting defendаnt‘s testimony, and not for the purpose of placing him at the scene of the crime. In his charge the judge was careful to repeat the reason for admitting Miss Saldutti‘s testimony:
The admission of rebuttal testimony is a matter committed to the discretion of the trial court, and the exercise of that discretion will not be overruled in the absence of gross abuse. Miss Saldutti was produced to refute answers defendant had given when questioned about the watch. Contradicting a defendant on rebuttal is not error. State v. King, 133 N.J.L. 480, 483 (Sup. Ct. 1945), affirmed per curiam, 135 N.J.L. 286 (E. & A. 1947).
III.
In the course of his detailed charge, the trial judge, in giving the jury his reason for admitting Miss Saldutti‘s testimony over objection, said in passing that she had testified that “the defendant under the name of Richard Harris of 23 Hollywood Avenue, East Orange, New Jersey, did bring into said store for repairs the watch which the State contends was the proрerty of the defendant,” and which was found at the scene of the crime. Miss Saldutti had merely said her record showed that “Richard Harris, 23 Hollywood Avenue, East Orange,” had brought the watch in for repairs on May 3 and 31, 1957. Defendant characterizes the trial court‘s statement that defendant brought the watch into the store as a glaring misstatement which tended to influence the jury. The judge‘s comment was entirely incidental. He had just finished telling the jury that it was the sole judge of the facts and any statement made either by counsel or the court which did not coincide with its recollection was to be disregarded. We perceive no error.
IV.
Defendant next claims that its motion for a judgment of acquittal at the close of the case was improperly denied because the State had failed to establish rape. Rape is defined as “carnal knowledge of a woman forcibly against her will,”
We find that the testimоny established the two elements of rape: force and lack of consent. Defendant directs his argument to the victim‘s failure to resist. The former test, flatly stated without qualification, that a woman must resist “to the uttermost,” has been characterized as obsolete. Bulls v. State, 33 Okl. Cr. 64, 68, 241 P. 605, 606 (Crim. App. 1926); see also, Kidd v. State, 97 Okl. Cr. 415, 417, 266 P.2d 992, 994-995 (Crim. App. 1953). The fact that a victim finally submits does not necessarily imply that she
“The kind of fear which would render resistance by a woman unnecessary to support a conviction of rape includes, but is not necessarily limited to, a fear of death or serious bodily harm, or a fear so extreme as to preclude resistance, or a fear which would well nigh render her mind incapable оf continuing to resist, or a fear that so overpowers her that she does not dare resist. * * *”
See also, 44 Am. Jur., Rape, §§ 5-8, 12 and 13, pp. 903-906, 909-910 (1942); 75 C.J.S. Rape §§ 11-12, 15, pp. 473-477, 481-482 (1952); State v. Conner, 97 N.J.L. 423, 427-428 (Sup. Ct. 1922); 2 Schlosser, Criminal Laws of New Jersey (rev. ed. 1953), § 2074, pp. 1024-6.
Applying this test, the victim was raped, “forcibly against her will,” within the meaning of
The record fully supports the jury‘s conclusion that it was defendant who was the attacker. His victim positively identified him in court. She also had had no difficulty in identifying him at the police line-up, by his appearance and voice. We do not agree that the line-up was not a fair one. Defendant‘s insinuation that the victim was able to identify him because of a newspaper account which appeared shortly before the line-up and which named the accused, was denied by her. The credence to be lent her testimony in this and other respects was for the jury to determine, as was the credence to be accorded defendant‘s alibi witnesses.
V.
Defendant‘s last point is that his rights were violated by the trial judge‘s failure to ask him if he had anything to say in his own behalf.
“* * * Before imposing sentence the court shall afford the defendant an opportunity to make a statement in his own behalf and to present any information in mitigation of punishment. * * *”
Defendant was not afforded that opportunity. The State frankly admits error. As the United States Supreme Court recently observed in Green v. United States, 365 U.S. 301, 81 S.Ct. 653, 5 L.Ed.2d 670, 673 (1961), none of the rеlevant major changes that have evolved in criminal procedure in modern times “lessens the need for the defendant, personally, to have the opportunity to present to the court his plea in mitigation. The most persuasive counsel may not be able to speak for a defendant as the defendant might, with halting eloquence, speak for himself. We are buttressed in this conclusion by the fact that the Rule [