State v. Lair

• Citation: 62 N.J. 388,301 A.2d 748,58 A.L.R.3d 627
• Parties: , 58 A.L.R.3d 627 STATE of New Jersey, Plaintiff-Respondent and Cross-Appellant, v. Thomas A. LAIR, Defendant-Appellant and Cross-Respondent.
• Decision Date: 19 March 1973
• Court: United States State Supreme Court (New Jersey)

Page 388

62 N.J. 388

301 A.2d 748, 58 A.L.R.3d 627

STATE of New Jersey, Plaintiff-Respondent and Cross-Appellant, v. Thomas A. LAIR, Defendant-Appellant and Cross-Respondent.

Supreme Court of New Jersey.

Argued Oct. 24, 1972.

Decided March 19, 1973.

David P. Jacobs, Asst. Deputy Public Defender, for defendant-appellant and cross-respondent (Stanley C. Van Ness, Public Defender; David P. Jacobs, Asst. Deputy Public Defender, of counsel, and on the brief).

Sheldon M. Simon, Sp. Asst. Prosecutor, for plaintiff-respondent and cross-appellant (Charles M. Egan, Jr., Morris County Prosecutor; Scheldon M. Simon, Sp. Asst. Prosecutor, of counsel, and on the brief.

John De Cicco, Deputy Atty. Gen. as amicus curiae (George F. Kugler, Jr., Atty. Gen., attorney; John De Cicco, Deputy Atty. Gen., of counsel and on the brief).

The opinion of the Court was delivered by

MOUNTAIN, J.

Defendant was indicted for having allegedly committed the crime of rape, N.J.S.A. 2A:138--1, as well as the crime of sodomy, N.J.S.A. 2A:143--1. He was tried to a jury and convicted of both offenses. Upon appeal the Appellate Division affirmed the sodomy conviction but reversed the conviction for rape, remanding that issue for a new trial. We granted both defendant's petition and the State's cross-petition for certification. 59 N.J. 288, 281 A.2d 801 (1971).

The facts may be briefly summarized. Defendant admitted that he paid a visit to the apartment of the victim during the evening of July 18, 1969. They were only casual acquaintances but he was apparently made welcome and in fact served a meal. There was testimony from which the jury might have found that later in the evening, following some desultory conversation, defendant made advances to his hostess which were at once rebuffed. He nevertheless persisted and by his threats, conduct and manner so terrified her that she feared for her life and effectively lost all power of resistance. He made her disrobe and thereafter over a period of several hours, compelled her to engage in natural sexual intercourse and in acts of anal sodomy, each upon three occasions. After he had left, in the early morning hours of July 19, the victim made her way to the home of a friend who lived nearby, where she remained until later in the forenoon when the police were notified and the victim treated in a local hospital.

The Appellate Division affirmed the conviction for sodomy but reversed the rape conviction for the reason that the trial judge did not, either in his charge or at any other point during the trial, instruct the jury that evidence of defendant's prior criminal convictions, which had been introduced, must only be considered by the jury upon the issue of credibility and for no other purpose.

Evidence of prior criminal convictions may be introduced for the purpose of impeaching the credibility of anyone who testifies, including a defendant in a criminal trial who offers himself as a witness. N.J.S.A. 2A: 81--12. Such evidence may not, however, be considered or taken into account in determining the defendant's guilt of the offense for which he is being tried. State v. Sinclair, 57 N.J. 56, 62--64, 269 A.2d 161 (1970); State v. Manley, 54 N.J. 259, 269--270, 255 A.2d 193 (1969); State v. Hawthorne,49 N.J. 130, 228 A.2d 682 (1967). A limiting instruction to this effect should be given by the trial court. Evidence Rule 6. Here this was not done. Defendant's counsel, however, did not request that the court include such an instruction in its charge nor was any objection or exception taken to its omission. The point came before the Appellate Division--as it now comes before us--as plain error.

Thus the issue is whether this failure to charge or otherwise instruct the jury was 'clearly capable of producing an unjust result,' under R. 2:10--2, commonly known as the 'plain error' rule, or whether it may fairly be considered harmless error, lacking the capacity to prejudice the defendant. After a very careful study of the entire record we have reached the conclusion that the error did not require a reversal. We base this decision very largely upon the overwhelming nature of the testimony pointing to defendant's guilt and the relative insignificance of the testimonial references to his prior convictions. His own narrative of the events, uncorroborated in any way and essentially implausible, included the admission that he had had normal sexual relations with the victim, although he insisted this had been with her consent. Upon being faced with an inculpatory statement made by him shortly after his arrest, he in effect admitted the acts of sodomy. That the trial judge concurred in the result reached by the jury is apparent from his remarks in denying a motion for a new trial. As we have said, no conclusion other than guilt seems tenable on this record, leaving aside all reference to defendant's past convictions.

Where a failure to inform the jury that evidence of prior convictions must be limited solely to the issue of credibility is urged as plain error, courts have not hesitated to sustain convictions where no real prejudice can be shown. United States v. Carter, 401 F.2d 748, 750 (3rd Cir. 1968), cert. den. 393 U.S. 1103, 89 S.Ct. 905, 21 L.Ed.2d 797 (1969); Nutt v. United States, 335 F.2d 817, 818--819 (10th Cir. 1964), cert. den. 379 U.S. 909, 85 S.Ct. 203, 13 L.Ed.2d 180 (1964); Commonwealth v. Cook, 351 Mass. 231, 218 N.E.2d 393, 397 (1966), cert. den. 385 U.S. 981, 87 S.Ct. 529, 17 L.Ed.2d 443 (1966); People v. Durham, 66 Ill.App.2d 163, 212 N.E.2d 765, 768 (1965). But see People v. Camel, 11 Mich.App. 219, 160 N.W.2d 790 (1968). Cf. State v. McNair, 59 N.J.Super. 453, 458--459, 158 A.2d 7 (App.Div.1960); State v. Baker, 90 N.J.Super. 38, 216 A.2d 26 (App.Div.1966). We hold that this failure to instruct the jury, presented here as plain error, did not warrant a reversal.

This brings us to a consideration of the sodomy charge. Defendant urges three principal grounds in his attack upon this conviction. He first contends that the statute, N.J.S.A. 2A:143--1, is unconstitutionally vague and hence violative of due process; secondly, that the act he is charged with having committed does not in fact fall within the interdiction of the statute and finally, that unless consent may be deemed a valid defense, the legislation is unconstitutional.

The enactment reads as follows:

Sodomy, or the infamous crime against nature, committed with man or beast, is a high misdemeanor, and shall be punished by a fine of not more than $5,000, or by imprisonment for not more than 20 years, or both. (N.J.S.A. 2A:143--1)

Turning to defendant's first argument, it is certainly true that penal legislation must define forbidden conduct with sufficient clarity to enable one to understand what he may or may not do to avoid infringing the legislative command.

No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes. All are entitled to be informed as to what the State commands or forbids. (Lanzetta v. State of New Jersey, 306 U.S. 451, 453, 59 S.Ct. 618, 619, 83 L.Ed. 888, 890 (1939))

Or, as this Court has said,

At the outset it must be recognized that a penal statute must specify the elements of the offense which it proscribes with such a reasonable degree of certainty as to apprise those to whom it is addressed of the standard of conduct proscribed, so that men of common intelligence need not necessarily guess at its meaning or differ as to its application. (State v. Joas, 34 N.J. 179, 185, 168 A.2d 27, 30 (1961))

It must also be apparent that vague statutory language may be conducive to an interpretation more responsive to the moral predilections of the adjudicating tribunal than to legislative intent. Harris v. State, 457 P.2d 638 (Alaska 1969).

Our statute does not define 'sodomy' nor does it specify what is meant by a 'crime against nature.' It does, however, equate the two. State v. Morrison, 25 N.J.Super. 534, 536, 96 A.2d 723 (Cty.Ct.1953). Statutes employing identical or similar language are to be found in about one-half of our states. Note, 'Sodomy Statutes: The Question of Constitutionality,' 50 Neb.L.Rev. 567, 568 (1971). A failure to set forth more precisely the nature of this kind of proscribed conduct has always been attributed to legislative desire to avoid the indelicacy of explicit description. State v. Morrison, Supra, at 536, 96 A.2d 723. While the courts of at least two states have held or indicated that the words 'crime against nature,' standing alone, are impermissibly vague and hence violative of due process, Harris v. State, Supra, 457 P.2d 638 (Alaska 1969); Franklin v. State, 257 So.2d 21 (Fla.1971), the majority of jurisdictions have ruled to the contrary, accepting the view that the words, 'crime against nature,' had a definite meaning at common law which may properly be attributed to them today. No state appears to have stricken as unduly vague a statute which, like ours, includes also the word 'sodomy.' Cases upholding identical or similar statutes against attack on the ground of vagueness include Hogan v. State, 84 Nev. 372, 441 P.2d 620 (1968); People v. Vasquez, 39 Mich.App. 573, 197 N.W.2d 840 (1972); State v. Crawford, 478 S.W.2d 314 (Mo.1972); State v. Trejo, 83 N.M. 511, 494 P.2d 173 (1972); Dixon v. State, 268 N.E.2d 84 (Ind.1971); State v. White,217 A.2d 212 (Me.1966); Warren v. State, 489 P.2d 526 (Okl.Cr.1971). We hold that our statute, also, is not unconstitutionally vague.

Defendant's argument that his conduct does not come within the embrace of the statute rests upon the asserted proposition that the acts prohibited are only those performed homosexually and not those performed heterosexually. Here, of course, defendant is charged with having assaulted a person of the opposite sex in the forbidden manner. He claims this kind of conduct to be beyond the reach of the enactment. Defendant's contention rests largely upon...