State v. Wilson

• Decision Date: 29 March 1978
• Citation: 158 N.J.Super. 1,385 A.2d 304
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Barbara WILSON, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 1

158 N.J.Super. 1

385 A.2d 304

STATE of New Jersey, Plaintiff-Respondent, v. Barbara WILSON, Defendant-Appellant.

Superior Court of New Jersey,Appellate Division.

Submitted Dec. 19, 1977.

Decided March 29, 1978.

Stanley C. Van Ness, Public Defender, for defendant-appellant (Daniel W. O'Mullan, Designated Atty., Whippany, of counsel and on the brief).

Thomas J. Shusted, Camden County Prosecutor, for plaintiff-respondent (Dennis G. Wixted, Asst. Prosecutor, of counsel and on the brief).

Before Judges FRITZ, BOTTER and ARD.

The opinion of the court was delivered by

ARD, J. A. D.

Defendant, an unwed mother, was charged with first degree murder of her son, age two months. The State alleged that she smothered him with a pillow. Tried to a jury, she was convicted of second-degree murder and sentenced to "an indeterminate term in the Reformatory for Women at Clinton not to exceed 30 years."

On appeal she urges as error:

(1) The trial court's charge on "other crimes evidence" was plain error.

(2) Trial court's determination that the former crime of child abuse had been committed was contrary to weight of evidence.

(3) The sentence imposed was illegal.

Defendant first contends that the trial judge's charge on "other crimes evidence" was plain error. In instructing the jury on this evidence the judge said:

* * * The evidence is admissible solely for the limited purpose of showing a motive, intent, knowledge or absence of mistake or accident on the part of the defendant, Barbara Wilson on the date in question, charged in the indictment. The evidence is not to be admitted as substantive evidence, as proving an element of the crime charged in the indictment, that the defendant, Barbara Wilson, did in fact, commit the act charged in the indictment on the date specified. And you should not consider or accept it for such purposes.

Defendant contends that the last two sentences of this portion of his charge to the jury constituted plain error.

Evid.R. 55 provides:

Subject to Rule 47, evidence that a person committed a crime or civil wrong on a specified occasion, is inadmissible to prove his disposition to commit crime or civil wrong as the basis for an inference that he committed a crime or civil wrong on another specified occasion but, subject to Rule 48, such evidence is admissible to prove some other fact in issue including motive, intent, plan, knowledge, identity, or absence of mistake or accident. (Emphasis supplied)

The prosecution sought to admit evidence of prior episodes of child abuse by defendant unconnected with the cause of the infant's death. This other crimes evidence was offered to prove defendant's intent and to rebut the defense of mistake or accident as the cause of the child's death. See State v. Wright, 66 N.J. 466, 332 A.2d 606 (1975), rev'g on dissent, 132 N.J.Super. 130, 147, 332 A.2d 614 (App.Div.1974); State v. Sinnott, 24 N.J. 408, 413, 132 A.2d 298 (1957); State v. Atkins, 151 N.J.Super. 555, 377 A.2d 718 (App.Div.1977).

In prosecuting defendant for murder the State was obliged to prove beyond a reasonable doubt that defendant intended to kill her son or to do him serious bodily harm, and that the boy's death by suffocation was not due to an accident or mistake. These are "essential elements of murder." State v. Gardner, 51 N.J. 444, 458-459, 242 A.2d 1 (1968).

A previous crime or civil wrong committed by a defendant cannot be used by the State for the purpose of demonstrating that the defendant is a "bad person" who is likely to have committed a subsequent crime. State v. Kociolek, 23 N.J. 400, 419, 129 A.2d 417 (1957). The trial judge would have been correct if his words conveyed this principle to the jury. Unfortunately, the language he used was inappropriate for this purpose. To the extent that the trial judge meant that evidence of defendant's prior physical abuse of her child could not be considered in relation to a "substantive" issue in the case, i. e., intent, absence of mistake or accident, the judge erred. But this alleged error was favorable to defendant, it did not prejudice her. By giving this charge the court diluted the State's contention that this evidence might be utilized by the jury in determining defendant's motive, intent or the absence of mistake or accident. At the very least, we do not conceive this to be an error "of such a nature as to have been clearly capable of producing an unjust result." R. 2:10-2.

An additional problem relating to the "other crimes evidence" is present. In determining the admissibility of the evidence offered under Evid.R. 55, the judge held a hearing out of the presence of the jury pursuant to Evid.R. 8. After a plenary hearing, the judge ruled that evidence of prior episodes of child abuse was admissible. he further articulated that the standard of proof he used in determining whether these prior events did in fact occur was by "the clear and convincing doctrine." Defendant now contends that the trial judge's utilization of this standard was error. We disagree.

Although we have found no New Jersey cases directly on point, ¹ we are satisfied that the court utilized the correct burden of proof standard. In State v. Hughes, 102 Ariz. 118, 426 P.2d 386 (Sup.Ct.1967), the court made an instructive review of cases in other jurisdictions:

While in some jurisdictions it has been held that evidence of a prior crime must be such that the jury would believe beyond a reasonable doubt that the defendant had committed it, (Curry v. State, 169 Tex.Cr.R. 195, 333 S.W.2d 375 (1960); Ernster v. State, 165 Tex.Cr.R. 422, 308 S.W.2d 33 (1957); Pelton v. State, 60 Tex.Cr.R. 412, 132 S.W. 480 (1910)) the overwhelming weight of authority in other jurisdictions is that proof of a prior purported crime, and the defendant's connection with it, must be "clear", Hawkins v. State, 224 Miss. 309, 80 So.2d 1 (1955), or "clear and convincing", People v. Wade, 53 Cal.2d 322, 1 Cal.Rptr. 683, 348 P.2d 116 (1959); Wrather v. State, 179 Tenn. 666, 169 S.W.2d 854 (1943), or that there must be "substantial proof" that the other crime has been committed by the defendant, State v. Hyde, 234 Mo. 200, 136 S.W. 316 (1911); People v. Lisenba, 89 P.2d 39 (Cal.App., 1939), on rehearing, 14 Cal.2d 403, 94 P.2d 569 (1939), affirmed, 314 U.S. 219, 62 S.Ct. 280, 86 L.Ed. 166 (1941); State v. Carvelo, 45 Haw. 16, 361 P.2d 45 (1961); see also 22 A. C.J.S. Criminal Law § 690 and cases cited. Regardless of whether the words "clear", "clear and convincing" or "substantial proof" are used, the test appears to be that the proof both as to the commission of another crime and its commission by the defendant, must be by "substantial evidence sufficient to take the case to a jury." State v. Hyde, 234 Mo. 200, 250, 136 S.W. 316, 331 (1911). (426 P.2d at 390-391)

Two Iowa cases are corroborative of this approach. In State v. Armstrong, 183 N.W.2d 205 (Sup.Ct.1971), cert. den. 414 U.S. 857, 94 S.Ct. 163, 38 L.Ed.2d 108 (1973), the court stated (at 208) that for evidence of other offenses to go to the jury, it must be such as to leave "no room for speculation" in the jurors' minds. In State v. Fetters, 202 N.W.2d 84 (Sup.Ct.1972), the court (at 92) repeated this formula, but added that proof beyond a reasonable doubt was not required.

The federal cases have generally been in accord. In United States v. Spica, 413 F.2d 129, 131 (8 Cir. 1969), it is stated that the 8th Circuit is "firmly committed to the rule that it is essential to the admissibility of another distinct offense that the proof be plain, clear, and conclusive, and evidence of a vague and uncertain character is not admissible." In United States v. Machen, 430 F.2d 523, 526 (7 Cir. 1970), the standard prescribed was "crisp, concise and persuasive" evidence. In United States v. Clemons, 503 F.2d 486, 490 (8 Cir. 1974), the "clear and convincing" standard was expressed. In Fabacher v. United States, 20 F.2d 736, 738 (5 Cir. 1928), it was also noted, "evidence of a vague and uncertain character regarding such an alleged offense is never admissible."

In United States v. Broadway, 477 F.2d 991 (5 Cir. 1973), the Court stated:

Our holding is simply that when proof of an assertedly similar offense is tendered to establish necessary intent, the other offense proved must include the essential physical elements of the offense charged, and these physical elements, but not the mental ingredients of the offenses must be clearly shown by competent evidence. An independent preliminary examination of the proffered evidence, out of the jury's presence should be conducted to determine admissibility under these standards. (at 995; footnote omitted)

Moreover, our position is supported by the commentators. In 1 Wharton, Criminal Evidence (13 ed. 1972), § 263 at 626, it is stated:

It is not necessary to prove the accused's guilt of the other crime beyond a reasonable doubt. It is sufficient merely that there be evidence tending to prove each element of the other crime; that the other crime be shown with reasonable certainty; or that proof of the other crime be clear.

In 1 Underhill, Criminal Evidence (6 ed. 1972), § 206 at 605:

It is sometimes said that the other crimes should be proved beyond a reasonable doubt, but a preponderance is also used as the test and some courts simply hold that the evidence need only tend to prove the defendant guilty of the other crime. In any event, the evidence of the other crimes must be substantial. Circumstantial evidence of the other crimes, if sufficiently strong, will suffice.

Similarly in McCormick, Evidence (2d ed. 1972), § 190 at 451-452, it is said:

* * * In the first place, it is clear that the other crime, when it is found to be independently relevant and admissible, need not be established beyond a reasonable doubt, either as to its commission or as to defendant's connection therewith, but for the jury to be entitled to consider it there must of course be substantial evidence of these...