This matter is before the court on an application by the State for an instruction to the jury on "flight."
On the fourth day of trial defendant failed to appear at the start of the morning court session. The court directed that inquiry be made as to his whereabouts. Outside the presence of the jury testimony was taken from the mother of defendant's girlfriend to the effect that defendant and the witness' daughter had at 4 A.M. on the previous night, packed their belongings and despite the mother's pleas left her home in defendant's car. The avowed reason for the departure was to escape the potential consequences of a jury verdict.
The testimony during trial graphically revealed that a vicious and brutal attack upon a 23-year-old girl occurred at dusk on a city street in Union City. After shopping at a local store the victim, while entering her vehicle, was accosted by a person wielding a razor-type knife. Immediately after the event and also at trial she positively identified defendant as the person who first assaulted her by cutting her on her hands, neck and left breast with the knife before he raped her on the sidewalk next to her car. Following defendant's arrest a search of his home and car under a warrant
turned up clothes which the victim identified as those worn by defendant on the night of the attack.
The court, being fearful that defendant had left or was about to leave the jurisdiction, issued a bench warrant for his arrest and directed forfeiture of his bail.
The right to a "flight" instruction by the court generally applies in the context of flight which occurs immediately following or shortly after the occurrence of the criminal event.
There appears to be no reported New Jersey case directly on point relative to the right of the court to advise the jury of the facts surrounding the departure of a defendant during trial and the giving of a "flight" instruction based on such facts. However, this court is of the view that if flight can be shown as reflective of a possible consciousness of guilt where it occurred close on to the criminal event it defies reason to deny the jury the right to factually know why the flight occurred at some later time.
The court, in passing, notes that the evidence of the guilt of this defendant at the time when he departed the courtroom scene was more than sufficient for the jury to return a guilty verdict. Because of the vicious and inhuman nature of the assault, defendant in all likelihood fully realized that if he was found guilty and found to be medically and legally responsible for his acts, a long-term period of incarceration would be appropriate, subject to mitigating factors that might appear in a probation pre-sentence investigation report.
Flight in the criminal law is defined as "the evading of the course of justice by voluntarily withdrawing oneself in order to avoid arrest or detention, or the institution or continuance of criminal proceedings * * *." Black's Law Dictionary (4th ed. 1968); People v. Griffin , 23 Ill. App. 3d 461, 318 N.E. 2d 671 (D. Ct. App. 1974) (emphasis added).
New Jersey courts have long recognized that flight, in certain circumstances, is relevant and probative in a criminal trial to prove consciousness of guilt. State v. Wilson , 57 N.J. 39, 49 ...