State v. Steele

• Citation: 92 N.J.Super. 498,224 A.2d 132
• Decision Date: 10 November 1966
• Docket Number: Nos. A--1167,A--9,s. A--1167
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. William STEELE and William Stokes, Defendants-Appellants.
• Court: New Jersey Superior Court – Appellate Division

Page 498

92 N.J.Super. 498

224 A.2d 132

STATE of New Jersey, Plaintiff-Respondent, v. William STEELE and William Stokes, Defendants-Appellants.

Nos. A--1167, A--9.

Superior Court of New Jersey

Appellate Division.

Argued May 16, 1966.

Decided Nov. 10, 1966.

Fred J. Kalisky, assigned counsel, Newark, for appellant William stokes.

Joel L. Pitman, Newark, for appellant William Steele (Robert Diamond, assigned counsel, Newark, attorney).

Martin G. Holleran, Asst. County Pros., for respondent (Brendan T. Byrne, Essex County Pros., attorney).

Before Judges GOLDMANN, FOLEY and COLLESTER.

The opinion of the court was delivered by

FOLEY, J.A.D.

Defendants were convicted after a trial by jury upon joint indictments charging them with the rape of Miss L and the robbery of Alfred E. Blyskal.

Of the several grounds which they raise on appeal we find only one of determinative merit, viz., that the court erred in limiting cross-examination of the complaining witnesses, which was designed to affect their credibility.

The proofs offered by the State ran thus: On March 7, 1964 Blyskal and Miss L, by prior arrangement, had a social engagement. At about 10:30 of that evening Blyskal, operating a 1955 Cadillac, called for Miss. L at her address in Irvington. They drove about for a while and then went to the Joli Lounge, a tavern in Newark, where they had 'about 3 or 4 drinks' and 'listened to the music.' At about 2 A.M. they left the tavern and went to Blyskal's car, which was parked about 75 feet away. According to Miss L, Blyskal said he felt a little tried and 'he wanted to doze off for a half hour.' While they were seated in the car, he in the driver's seat and she beside him, the car door on Blyskal's side was opened by one of two men. One man 'had a pipe or some type of a bat or something' and struck Blyskal in the face with it. Mention was made by the men of getting Blyskal's wallet. Before he had an opportunity to give them the wallet, the man who struck him said, 'jump in the car and let's get out of here.' From the stand Blyskal identified defendant Steele as that person, and defendant Stokes as his companion. Blyskal was pulled from the car and thrown to the ground. The two men then jumped into the Cadillac and, with Miss L sitting in the middle of the front seat, drove off. Blyskal, despite some difficulty in locating a telephone, managed to reach the police and inform them of the robbery.

The testimony relevant to the alleged rape came entirely from Miss L. She testified that the men drove her to a desolate sopt in Weequahic Park where, after the car was parked, she was 'taken in the back of the car.' She did not remember who 'took' her there. Her clothing was removed 'from the waist down.' She did not remember who took her clothing off, or whether she herself removed it. She then said that her abductors, whom she identified as the two defendants, successively had sexual intercourse with her, in all four times, in the course of which they kissed her mouth and fondled her breasts. The entire affair lasted 20 minutes. She had a clear and detailed recollection of what happened, admitted that she had not been threatened either en route to the park or at the time of the 'attack,' or that acts of violence (other than the intercourse itself) had been practiced upon her. In fact, in her direct examination she gave no testimony whatever that she submitted to the men through fear of violence. It was only after the direct examination was concluded that the court through a series of leading questions, which in form would have been objectionable had they been propounded by the prosecutor, asked:

'Q. Miss L., before the cross-examination starts, they forced you into the back of the car?

A. Yes.

Q. Were you in fear when you went into the back of the car.

A. Of course.

Q. They didn't ask you to have relations, did they.

A. No, I didn't have any choice.

Q. Explain that to the jury--that you had no choice.

A. I had no choice. By that I mean I think they would have killed me. I had no choice.

Q. You were in fear?

A. Yes, of course.'

Miss L said that after the several acts of intercourse, she dressed and told defendants that she 'didn't want to get involved in anything and to just leave the car and park it,' and 'just leave me, which they did.' Pursuant to her request they dropped her off at 20th Street and 16th Avenue, Newark, a little after 4 A.M., leaving the car with her. After about 'five or ten minutes' she left and started walking toward her home. Immediately thereafter she was accosted by detectives who asked her if she was Miss L. Upon identifying herself she was taken to a police station house. There she identified defendants, as did Blyskal who had preceded her to the police station.

While the evidence Prima facie made out both the robbery and the rape charges, and in our judgment was sufficient to sustain a conviction of both, it is patent that as to both charges the identification of defendants as the persons who had committed the offenses was in serious issue since both maintained that they were not present when the alleged crimes were committed. Furthermore, in connection with the rape charge, there is implicit in the testimony of the complaining witness herself the question of whether defendants had with force and violence had intercourse with her against her will, as required by the rape statute, or, on the contrary, whether despite her protestations in answer to the judge's questions, she had in fact, for reasons unconnected with fear, voluntarily submitted. Thus, the issue of credibility both as to Blyskal and Miss L assumed formidable proportions.

The specific challenge which defendants make to the court's limitation of the scope of cross-examination is based upon: (1) the refusal of the court to permit the cross-examiner to inquire into Blyskal's activities during the day with respect to the imbibing of alcoholic beverages; (2) the interrogation of that witness concerning his alleged illicit sexual relationship with Miss L, and (3) Miss L's testimony, previously not referred to, that defendants had robbed her of $70, a matter which she did not report to the police officers who apprehended her and took her into custody. It is argued that (1) Blyskal's entire drinking activities, taken in conjunction with the events of the evening and the fact that he was 'drowsy,' if established, might seriously have affected the weight to be accorded to his assertion that he was physically able to identify defendants as of the time he was robbed; (2) in light of Miss L's avowed quiescence, evidence relating to her sexual immorality was relevant to a showing of defect in character in a sex offense case, on the issue of her consent, and (3) her credibility might also have been affected had defendants been able to establish the fact that she had not reported to the police the robbery which allegedly was perpetrated on her.

Considerable latitude is customarily allowed in the cross-examination of a witness, but the extent of such examination rests in the sound discretion of the trial court. State v. Siegler, 12 N.J. 520, 526, 97 A.2d 469 (1953). In consonance with this general rule the trial judge has broad discretion to determine the proper limits of cross-examination of a witness whose credibility is put in issue. State v. Pontery, 19 N.J. 457, 473, 117 A.2d 473 (1955). Thus, it has been held in a bastardy proceeding that cross-examination was properly limited when it sought to attack the credibility of the complaining witness, State v. Arbus, 54 N.J.Super. 76, 82--84, 148 A.2d 184 (App.Div.1959); see also Annotation, 'Cross-examination as to sexual morality for purposes of affecting credibility of witness,' 65 A.L.R. 410 (1930); and in a prosecution for carnal abuse it was held that cross-examination which sought to inquire into evidence of sexual acts on other occasions with persons other than the defendant was properly excluded. State v. Raymond, 74 N.J.Super. 434, 438, 181 A.2d 515 (App.Div.1962).

But cross-examination upon proper foundation has been permitted with respect to the complaining witness's general reputation for chastity, or lack of it, as bearing on the issue of consent in a rape case. State v. Rubertone, 89 N.J.L. 285, 287, 98 A. 253 (E. & A.1916) (dictum; carnal abuse case); State v. Yevchak, 130 N.J.L. 584, 587, 34 A.2d 231 (Sup.Ct.1943) (no proper foundation; rape case); O'Blenis v. State, 47 N.J.L. 279 (Sup.Ct.1885) (rape case); Annotation, 'Admissibility in rape cases of evidence of previous unchastity, or reputation for unchastity, of prosecutrix,' 140 A.L.R. 364, 380 Et seq. (1942); 1 Wigmore, Evidence (3d ed. 1940), § 62, p. 464. See also State v. Orlando, 119 N.J.L. 175, 180, 194 A. 879 (Sup.Ct.1937), where cross-examination designed to establish that the intercourse was by consent and not forcible was allowed; and State v. Lasowski, 4 N.J.Misc. 489, 491, 133 A. 415 (Sup.Ct.1926), where it was held to be within the discretionary control of the court to permit cross-examination of the prosecutrix's mother.

The rule that the trial judge has broad discretion in controlling cross-examination is widely endorsed. And a number of jurisdictions have also specifically subscribed to the rule that the defense should be accorded great latitude in the cross-examination of the complaining witness in sex cases where an accusation is easily made and difficult to disprove. See People v. Clark, 63 Cal.2d 503, 47 Cal.rptr. 382, 407 P.2d 294 (Sup.Ct.1965); People v. Rainford, 58 Ill.App.2d 312, 208 N.E.2d 314, 316 (App.Ct.1965); Frady v. State, 212 Ga. 84, 90 S.E.2d 664, 665 (Sup.Ct.1955); Sherrick v. State, 157 Neb....