Decided: April 24, 1967.
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ESTEBAN DUQUE AVILES, DEFENDANT-APPELLANT
For affirmance -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For reversal -- None.
[49 NJ Page 193]
This is an appeal by defendant from a verdict of guilty of murder in the second degree. He had previously been tried and a similar verdict had been rendered by the jury. We followed the ruling in Griffin v. State of California, 380 U.S. 609, 85 S. Ct. 1229, 14 L. Ed. 2 d 106 (1965), and reversed his first conviction on the ground that the trial court erred in charging the jury that defendant's failure to take the stand justified an inference that defendant could not deny some of the evidence presented by the State. 45 N.J. 152 (1965).
At his second trial, defendant did not request a charge with respect to his failure to testify, and none was given. Defendant, through his appellate attorney, claims plain error, stating that the trial judge should have charged, even without any request by defendant, that no adverse inference could be drawn from defendant's failure to testify. We find no constitutional or other basis for defendant's contention nor do we find any basis for applying the plain error rule. R.R. 1:5-1(a).
Defendant's second ground for reversal is that the jury's verdict, insofar as it was based upon a finding that defendant was sane when he committed the crime, was against
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the weight of the evidence. A jury's verdict will not be set aside "as against the weight of the evidence unless it clearly and convincingly appears that the verdict was the result of mistake, partiality, prejudice or passion." R.R. 1:5-1(a). We cannot find any basis for disturbing the jury's finding.