On certification to the Appellate Division.
For affirmance -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Mountain. For reversal -- None. The opinion of the Court was delivered by Francis, J. Weintraub, C.J., dissenting in part. Weintraub, C.J. concurs in result and dissents in part.
[61 NJ Page 255] Defendant Hampton was convicted of kidnapping, N.J.S.A. 2A:118-1, breaking and entering and larceny, N.J.S.A. 2A:94-1 and 2A:119-2, carrying a concealed weapon, N.J.S.A. 2A:151-41, atrocious assault and battery, N.J.S.A. 2A:90-1 and 2A:151-5, and receiving a stolen automobile, N.J.S.A. 2A:139-3. The following sentences were imposed: 30-35 years in State Prison for kidnapping, breaking and entering 3-5 years, larceny 1-3 years, both terms to be served concurrently with the kidnapping sentence; 1-3 years for carrying a concealed weapon, 3-5 years for atrocious assault and battery, 3-5 years for receiving a stolen automobile; execution of these last three sentences was suspended. The conviction was affirmed in the Appellate Division in an unreported opinion. However, the 30-35 year sentence was modified to 30 years without any minimum and maximum specification. We granted defendant's petition for certification. State v. Hampton, 59 N.J. 263 (1971). In this Court defendant's appeal raises four contentions: (1) that the trial court erred in its charge to the jury on the issue of voluntariness of defendant's confession, and in refusing to charge as requested on the subject; (2) the kidnapping statute violates the Eighth Amendment ban of the Federal Constitution against cruel and unusual punishment; (3) it also violates the due process and equal protection clauses of the Fourteenth Amendment, and
(4) the facts proved by the State do not warrant a conviction for kidnapping.
On July 20, 1968, at about 10:20 P.M., Mrs. Mary Rayborn, a widow, returned to her apartment on South Main Street, Woodstown. Upon entering she began to look for a note which was to have been left by her two sons. While doing so she heard a voice say "Hold it, lady, don't move." Turning around she saw a man standing near the door holding a gun in his hand. She started to walk toward him and was told again "Don't move, lady." She offered to give him whatever money she had and anything else he wanted in the apartment, if he would leave. The man, who later turned out to be Hampton, refused saying he could not leave her there as there were too many telephones in the apartment. Then he told her she would have to drive him out of town. She replied that she was very nervous but would drive him to a neighboring community. Following instructions she walked out the door, Hampton following with the gun in her back. As they proceeded toward the parking area where her car had been left she saw another man standing nearby and considered yelling to him but the gun at her back deterred her. At the parking lot she noticed that Hampton was carrying a "long rifle" as well as the hand gun. This caused abandonment of all thoughts of escape.
They got into her car at which time defendant tried to summon the man who was standing nearby. Although a confederate, he did not join them. That person was arrested later with Hampton in connection with a stolen car in which the two men had come into town. He was not on trial in this case nor did he testify. Mrs. Rayborn under revolver threat drove out of the parking lot. In following directions she realized Hampton was not familiar with the area, so she turned down a street where she had an acquaintance and slowed down. An immediate order to drive faster followed,
accompanied by a direction to keep off the main roads. After continuing for a while she was instructed to stop as they neared a lake. Fearful of her life she said it was a Boy Scout camp and usually there were boys camping there. Thereafter, defendant noticed a dirt road running off the main road and ordered her to turn into it. She did not turn but immediately after passing the road the gun was pushed into her side and she was told to stop. Then she was ordered to back into a driveway and stop. She was very nervous, and asked him if she could take a pill because she had a bad heart. He allowed her to do so but told her to turn off the car headlights. She did so but was so "terribly frightened" that she put them back on, whereupon he put the gun to her side again and told her he would not harm her if she kept them off. She smoked a cigarette, gave Hampton one and kept talking to him.
They began to drive around again and they came to a section populated largely by blacks. (Hampton is a black). Mrs. Rayborn suggested that he get out there but he refused. After a while she realized they were headed back toward Woodstown and told Hampton she would take him to the center of town where he could have the car and $20, and she would walk home. Hampton said he would think about it, but on arrival in town apparently he changed his mind, She stopped behind a parked car near a church and he said "Move, lady, there is somebody in that car." She continued on a short distance and stopped again saying she was too nervous and upset to go on and wanted to get out. She took $20 out of her purse and being too frightened to hand it to him, she placed it on the seat at the same time trying to give him directions about getting out of town. But he said "Lady, you drive me out of town and then I will let you go." She thought to herself that if he did not let her get out, she was probably going to be shot anyway and she would rather be shot there in town. As he said to her "I am sorry lady, I can't afford to let you go," she undertook to open the car door, and heard the gun go off. She felt a sting
in her right arm and on reaching for that area found her hand covered with blood. She ran across the street yelling "I have been shot," and finally gained admittance to an old ladies home a short distance away. In a short time the police arrived and took her to a nearby hospital where she remained overnight. The bullet had entered her arm and lodged itself near the collar bone. For medical reasons a decision was made not to remove it, and she still carries it there.
The record reveals that Mrs. Rayborn had driven defendant around for about an hour before she was shot.
The following morning a son of Mrs. Rayborn drove her from the hospital to Woodstown Borough Hall. There she saw two men seated in a room off the main hallway, and identified Hampton as the person who forced her to drive him around and who shot her. On seeing her Hampton said he was sorry and that he did not mean to hurt her.*fn1
An unusual circumstance was responsible for the presence of the two men at the Borough Hall. During the previous evening a person identifying himself as James Ellis (actually Marvin S. Ellis, Hampton's companion who remained outside Mrs. Rayborn's apartment while he entered it) reported a stolen car. The car found in Woodstown was owned by Harvey Vincent of Wilmington, Delaware, who had reported it stolen. As it developed this was the car that Ellis and Hampton drove into Woodstown and left at a gas station while they went looking for some means of getting money to buy gasoline. Later that evening Sergeant Harold Bulford of the Borough saw Ellis and Hampton at a bus stop. Ellis told Bulford that he had seen a man running from the stolen car and both men offered to help look for him. After touring around unsuccessfully for a while the
two men asked to be driven to Salem, a nearby town. On the way there they transferred to a Salem police car, and requested and were granted permission to stay overnight in the Salem City jail. Early the following morning Bulford advised the Salem Police he wanted the men for questioning about the stolen car, and around 7:00 A.M. brought them back to Woodstown. This action was taken because shortly after midnight an examination of the stolen car by a fingerprint expert disclosed fingerprints of both Hampton and Ellis on it. It appears also that after Mrs. Rayborn had been hospitalized, search of her car by Bulford revealed a $20 bill on the front seat and on the floor a rifle belonging to one of her sons, which Hampton had taken from her apartment.
At the Borough Hall Bulford advised the men fully of their Miranda rights. Neither one requested an attorney. About a half hour later Hampton agreed to waive his Miranda rights and to give a statement; and he signed such a waiver. At about this time Hampton was told he was suspected of atrocious assault and battery, breaking and entering and larceny. That the waiver he signed contained complete Miranda warnings is not questioned; nor is the sufficiency of the waiver form attacked as inadequate. It said:
I have read the statement of my rights and I understand what my rights are. I am willing to make a statement and answer questions. I do not want a lawyer at this time. I understand and know what I am doing. No promises or threats have been made to me and no pressure or coercion of any kind has been used against me.
The time sequence between the giving of the warnings and Hampton's waiver and the giving of his statement and Mrs. Rayborn's identification is not certain from the record. The statement was made at 10:20 A.M. and Mrs. Rayborn said at the trial her identification of Hampton took place in the late morning.
Prior to the statement Hampton and Ellis were allowed to hold a conversation alone. A short time later Ellis gave
a statement implicating Hampton, as the result of which the hand gun used to shoot Mrs. Rayborn was located. After being informed of Ellis' statement and shown the gun which Hampton then identified, he volunteered to discuss the matter. Before doing so he was again given the Miranda warnings and the incriminatory statement followed their repetition. See State v. Magee, 52 N.J. 352, 374 (1968), cert. den. 393 U.S. 1097, 89 S. Ct. 891, 21 L. Ed. 2d 789 (1969). The details were substantially in accord with Mrs. Rayborn's testimony already outlined, except that in describing the shooting incident he said "When she started to get out [of the car] I jumped and the gun went off as I was trying to get out of the car."
When the prosecutor called Sergeant Bulford to the witness stand, the parties and the court being aware that his testimony would involve Hampton's statement, the jury was excused until the issue of its voluntariness was decided. Bulford's testimony on the subject was given in accordance with the factual outline already set forth. During this hearing Hampton also testified, and it may be said fairly that he raised no substantial conflict with respect to the Miranda warnings, his execution of the waiver and his willingness to give a statement. In fact he testified on cross-examination:
Q And when you learned of the statement by Ellis, it was then that you started to make your statement, is that not correct?
A That is when I was asked to make a statement.
Q You didn't voluntarily make this statement?
A I volunteered after I was asked.
Q You volunteered, did anybody force you to make this statement?
Q You knew what you were doing at all times, did you not?
A I refuse to answer that on the grounds that it may incriminate me.
Some discussion followed between court and counsel during which the court said: "The question was, did you make this statement voluntarily and he said, yes. That is not an improper
question * * *." Then the court said: "I have heard enough testimony with respect to this. I find that the statement is admissible." It is clear that the necessary finding of voluntariness was made, and that it was amply supported by the testimony.
The trial then continued in the presence of the jury and Sergeant Bulford repeated his testimony respecting the Miranda warnings, the waiver and the giving and signing of the statement by Hampton. The statement was then offered in evidence and objected to by defense counsel who advised that his client was not going to testify on the subject. The court, as already noted, having found the statement voluntary and admissible, out of the presence of the jury, should simply have overruled the objection and had the statement marked in evidence. However, probably motivated by the rule which prohibits a trial judge from advising the jury of his earlier finding out of their presence that the confession was voluntary, he told the jury that the statement was admissible and that he would not decide "on the voluntariness of the statement." Continuing he said:
That is your function. You will decide from the testimony that you have heard and which you will hear later and from all the circumstances that are brought forth whether or not this is a voluntary statement. If you find it voluntary you may give it such weight or value as you desire. If you find it is not voluntary you should disregard and shall disregard it. All I am ruling on right now is that the statement will be admissible in evidence.
After some additional corroborative testimony on the voluntariness of the statement, Hampton's fingerprints, and the finding of the stolen rifle in Mrs. Rayborn's car, the State rested. The defense followed suit without calling any witnesses.
Before summation defense counsel handed the court a six page typewritten document entitled "Request to Charge." It contained 10 unnumbered paragraphs constituting a disquisition on the general state of the law respecting admissibility
of confessions. About two pages were devoted to an elaborate definition of voluntariness. The court declined to read this paper to the jury, and at the conclusion of the ...