State v. Provet

• Citation: 337 A.2d 374,133 N.J.Super. 432
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Jerome PROVET, Defendant-Appellant.
• Decision Date: 16 April 1975
• Court: New Jersey Superior Court – Appellate Division

Page 432

133 N.J.Super. 432

337 A.2d 374

STATE of New Jersey, Plaintiff-Respondent, v. Jerome PROVET, Defendant-Appellant.

Superior Court of New Jersey Appellate Division.

Submitted April 8, 1975.

Decided April 16, 1975.

Stanley C. Van Ness, Public Defender, for defendant-appellant (Michael R. Klekman, Asst. Deputy Public Defender, of counsel and on the brief).

Joseph P. Lordi, Essex County Prosecutor, for plaintiff-respondent (Damon R. Sedita, Asst. Prosecutor, of counsel and on the brief).

Before Judges MATTHEWS, FRITZ and BOTTER.

The opinion of the court was delivered by

BOTTER, J.A.D.

Defendant was found guilty in a jury trial of rape (N.J.S.A. 2A:138--1) and armed robbery (N.J.S.A. 2A:141--1, N.J.S.A. 2A:151--5). He was sentenced to New Jersey State Prison for a period of seven to ten years on the rape conviction, with a concurrent term of four to six years on the robbery conviction and a term of one to two years for being armed, consecutive to the sentence imposed for the rape.

Three points are raised on this appeal. The first, which was not raised below, is that the trial judge erred in charging the jury that they could consider the omission of a material factual assertion in a statement given to the police by the complaining witness only for the purpose of affecting the credibility of the witness. The second point is that the court improperly made the sentence on the conviction for being armed consecutive to the rape conviction although the indictment did not charge the commission of rape while armed but only charged the commission of robbery while armed. Lastly, it is contended that the trial judge improperly imposed a State Prison sentence rather than a sentence to the Youth Correctional Institution Complex.

The complaining witness, G.T., a 25-year-old student nurse and 'minister in holiness,' testified that she was robbed and raped at gunpoint by defendant. She said that she was able to see defendant's face during the course of the robbery, but that after he ordered her to unclothe he tied her dress around her head so she could not see. On cross-examination, however, she testified that during the rape she pretended that she could not breathe and that her assailant removed the dress, enabling her to observe his face thereafter. She had not testified on direct examination to the removal of the dress from around her head, nor was this included in the statement that she gave to the police one day after the rape. Referring to this omission, the trial court charged the jury as follows:

Now, evidence showing that at a prior time a witness has failed to say something which is inconsistent with the witness's testimony at trial may be considered by you for the sole purpose of adjudging the witness's credibility. In other words, this may simply go to her credibility if you find that it should go to her credibility at all. * * *

At any rate, you will have to consider the importance, whether this is important and whether it does go to the witness's credibility and the extent to which it does go to the witness's credibility if you find it does go to her credibility at all.

So that the weight and the application of this prior omission, if you find it in fact to have been an omission, is for you to determine.

No exception was taken to this part of the court's charge and we are asked to consider it plain error. State v. Macon, 57 N.J. 325, 273 A.2d 1 (1971).

Prior to the adoption of the Rules of Evidence in September 1967 New Jersey followed the prevailing, traditional view that a prior inconsistent statement cannot be offered as substantive evidence of the facts stated, that is, as proof of the matter asserted therein, but can be offered only for the purpose of impeaching the witness. State v. Laws, 50 N.J. 159, 177, 233 A.2d 633 (1967), mod. o.g. 51 N.J. 494, 242 A.2d 333 (1968), cert. den. 393 U.S. 971, 89 S.Ct. 408, 21 L.Ed.2d 384 (1968); Goglia v. Janssen Dairy Co., 116 N.J.L. 396, 397, 184 A. 814 (E. & A.1936); State v. Salimone, 19 N.J.Super. 600, 608--609, 89 A.2d 56 (App.Div.1952), certif. den. 10 N.J. 316, 91 A.2d 230 (1952); Kulinka v. Flockhart Foundry Co., 9 N.J.Super. 495, 500--501, 75 A.2d 557 (Cty.Ct.1950), aff'd sub nom. Bujalski v. Flockhart Foundry Co., 16 N.J.Super. 249, 84 A.2d 468 (App.Div.1951), certif. den. 8 N.J. 505, 86 A.2d 321 (1952); see Link v. Eastern Aircraft, etc. Gen'l Motors Corp., 136 N.J.L. 540, 57 A.2d 8 (E. & A.1948), and State v. D'Adame, 84 N.J.L. 386, 395--397, 86 A. 414 (E. & A.1913); 3A Wigmore, Evidence (Chadbourn rev. 1970), § 1018 at 995--998; McCormick, Evidence (2d ed. 1972), § 34 at 67, § 251 at 601. Under that rule: 'Contradictory statements are admissible solely to impeach the witness and for no other purpose. They are ineffective as direct and affirmative proof of the facts to which they relate.' Goglia v. Janssen Dairy Co., Supra, 116 N.J.L. at 397, 184 A. at 815. As such, a limiting instruction was required. McCormick, Supra, n. 62 at 601; see also State v. D'Adame, Supra, 84 N.J.L. at 397, 86 A. 414 and United States v. Lipscomb, 425 F.2d 226, 227 (6 Cir. 1970), both referring to the general rule but dealing specifically with evidence admitted solely for the purpose of neutralizing suprise testimony of a witness.

However, with the adoption of the Rules of Evidence in 1967, New Jersey moved to the more modern view (see McCormick, Supra at 602--603) that a prior inconsistent extra-judicial statement of a witness called by another party is admissible as 'substantive' evidence, as an exception to the hearsay rule, providing the statement would be admissible if made by the witness while testifying. Evid.R. 63(1)(a); Comment 63(1)(a), New Jersey Rules of Evidence (1972). The principal rationale for this rule is that the declarant is available for cross-examination, so that the fact-finder may give such weight to the statement as it deserves, considering the reasons, if any, given for the contradiction and other evidence bearing on the issue. 3A Wigmore, Supra at 996.

A statement from which there has been omitted a material assertion that would normally have been made and which is presently testified to may be considered a prior inconsistent statement. State v. Rosa, 71 N.J.L. 316, 58 A. 1010 (E. & A. 1904); Esderts v. Chicago, Rock Island & Pacific R. Co., 76 Ill.App.2d 210, 222 N.E.2d 117 (App.Ct.1966), cert. den.386 U.S. 993, 87 S.Ct. 1309, 18 L.Ed.2d 339 (1967); Commonwealth v. West,312 Mass. 438, 45 N.E.2d 260 (Sup.Jud.Ct.1942); Erickson v. Erickson & Co.,212 Minn. 119, 2 N.W.2d 824 (Sup.Ct.1942); 3A Wigmore, Supra, § 1042 at 1056; McCormick, Supra at 68. While it can be readily understood that a material omission in a prior statement may affect the credibility of a witness, the Omission alone cannot logically serve as affirmative proof of a fact asserted. But the prior statement as a whole, because of the omission, may serve as an implied contradiction of the testimony given by the witness. 3A Wigmore, Supra. In the case at hand the statement was offered to impeach G.T.'s testimony that her dress was removed from her eyes during the sexual assault. It was offered not simply to attack her credibility but to prove a negative proposition as well, namely, that the dress was not removed and that she could not have observed her assailant during the rape. For this reason the limiting instruction should not have been given. When a prior contradictory statement is introduced pursuant to Evid.R. 63(1)(a) it is now improper to give a limiting instruction unless the statement has been offered for a limited purpose (see Evid.R. 6) or as neutralizing evidence under Evid.R. 20. ¹

Nevertheless, the instruction could not have prejudiced defendant's rights in the case at hand. See McCormick, Supra at 604, saying: 'Allowing it as substantive evidence pays an added dividend in avoiding the ritual of a limiting instruction unlikely to be heeded by a jury.' See also Report of the N.J.Supreme Court Committee on Evidence, Comment R. 63(1) at 130 (1963), speaking of the traditional rule:

* * * the prior statement is limited to an evaluation of...