On appeal from Superior Court, Law Division, Mercer County.
Allcorn, Morgan and Horn. The opinion of the court was delivered by Morgan, J.A.D. Allcorn, P.J.A.D. (dissenting).
[161 NJSuper Page 431] Conviction by jury of two counts of perjury (N.J.S.A. 2A:131-1) and one count of misconduct in office (N.J.S.A. 2A:85-1), defendant appeals, contending that (1) entrapment was established as a matter of law or, at least, should have been submitted to the jury as a factual issue; (2) trial court error occurred when the trial judge instructed the jury that defendant bore the burden of
proving amnesia; (3) the trial judge improperly delimited the scope of expert testimony; (4) defendant's motion to adduce evidence of the result of a polygraph test should have been granted, and (5) the jury instructions improperly omitted reference to the necessity that defendant's allegedly perjured grand jury testimony be material.
The charges against defendant stemmed from an investigation by the Mercer County grand jury into allegations by an escaped inmate that, while incarcerated in the Mercer County Workhouse, he paid $1500 to obtain a favorable work assignment. Defendant, warden of the workhouse, was subsequently indicted for perjury and misconduct in office for having failed to report a telephone conversation with the escaped prisoner in which the fact of the bribe was allegedly made known and for swearing to the grand jury that no such telephone conversation ever occurred.
The sequence of events pertinent to the issues raised on this appeal commences with the 12-month incarceration of one Angelo ("Doc") Migliaccio in the workhouse following guilty pleas to a number of gambling charges. Initially, Migliaccio was assigned to work in the officers' dining room. Later, he was reassigned to an "outside" detail in the hothouse, an assignment Migliaccio apparently viewed as more to his liking. The hothouse work entailed outside work, cutting grass and caring for flowers, and was considered beneficial to his precarious health. Migliaccio was no longer young and had previously suffered from coronary problems.
This assignment terminated, however, when Migliaccio and two other inmates violated workhouse regulations by wandering into a forbidden portion of the institutional grounds. All three were reprimanded, and Migliaccio was deprived of his favorable hothouse assignment in favor of an assignment to labor as a "runner," a job entailing indoor work on a variety of tasks, including handling of institutional linen and general custodial chores.
Finding this new assignment more physically onerous than his previous one, Migliaccio consulted with a fellow
inmate, Richard Storcella, also serving time for gambling offenses, and a long time friend and occasional criminal associate of Migliaccio. Storcella's work assignment in the administration building for the institution gave him access to the warden's office. Migliaccio importuned Storcella to aid him in obtaining reassignment to the hothouse and offered him money for his efforts. Storcella agreed that for a payment of $1500 he would do what he could.
Pursuant to this agreement, $1500 in two checks, $1,000 and $500, was delivered by Migliaccio's wife to Storcella's wife, and thereafter Storcella spoke with defendant in the latter's office. He told defendant of Migliaccio's desire for reassignment to the hothouse detail and that if he was reassigned, there would be "$1000 in it for you [defendant]." It is undisputed that defendant flatly rejected the money offer and threw Storcella out of his office, saying "Get out of here. I don't want to know nothing about money. I will do what I could for the best interest of the inmate." Storcella never discussed the matter again with defendant.
Not content with this response, Storcella next spoke with Michael Loffredo, an experienced guard at the workhouse and a friend of defendant. Apparently, Loffredo had been acquainted with both Storcella and Migliaccio before their incarceration. Storcella advised Loffredo of Migliaccio's desire for reassignment to the hothouse and of his willingness to pay for it. They agreed that the $1500 paid by Migliaccio would be split up, with $700 going to Loffredo; Storcella would retain the remaining $800. Pursuant to the agreement, Loffredo spoke with defendant, explaining Migliaccio's desire for reassignment to the hothouse and, as a special favor to him, Loffredo, asked that the request be honored. Defendant's response was that he would do what he could to effectuate the reassignment. A few days later, on June 12, 1973, Angelo Migliaccio was reassigned to the hothouse work detail. Loffredo received the agreed $700 in two checks, one for $500 and the other for $200.
While defendant was out on extended sick leave in Florida commencing June 14, 1973, Migliaccio escaped from the workhouse on July 1, 1973 by walking away from his minimum security job. On defendant's return to New Jersey during the early part of July 1973 he met Loffredo in a Trenton bar, during which meeting defendant's health and the health of his father were the topics under discussion. While in the rest room Loffredo thrust at defendant a unit of paper currency. When defendant initially rejected it, Loffredo placed the money in defendant's pocket. Subsequently, defendant found a $100 bill and thought that it was in repayment of an $80 debt Loffredo owed him.
Following his escape from the workhouse Migliaccio became suspicious of the good faith of Storcella and Loffredo; specifically, he doubted that any part of the $1500 payment was used as a bribe to secure his reassignment to the hothouse detail. Accordingly, while Migliaccio was a fugitive, he and his wife met with the Mercer County Prosecutor's office in October 1973 where information concerning official misconduct at the workhouse was disclosed. Both agreed to assist the Prosecutor's office in investigating Migliaccio's allegations of corruption.
Pursuant to this agreement, Migliaccio met with Richard Hutchinson, an investigator in the Mercer County Prosecutor's employ, at the latter's home on November 21, 1973, for the purpose of placing a call to defendant of which a tape recording would be made. Hutchinson obtained defendant's unlisted number, dialed it, and when he heard a voice, handed the phone to Migliaccio.*fn1 The recording of the entire conversation, together with its transcription, was admitted into evidence over defendant's objection.
Because this conversation is the central fact about which the remainder of the case revolves, some mention ought to be made of its curious contents. First, Migliaccio, an escaped inmate at the time, did not establish his identity at the outset of the conversation.*fn2 Indeed, the call commenced with Migliaccio addressing defendant by the latter's first name, "Ted", and immediately thereafter asking him whether Mike Loffredo was there, almost as if such calls, between escaped inmate and warden, were a daily occurrence and "Ted" would know who was calling. This is followed by an inquiry into "Ted's" health, evidencing Migliaccio's knowledge of defendant's auto accident. At no point in the first three pages of the transcription of his conversation does Migliaccio identify himself; and defendant neither asks for his caller's identity nor addressed him by name. And it is during this three-page portion of the conversation that Migliaccio makes somewhat cryptic references to the corruption which was the underlying purpose of the call.
The subject is opened in the following manner:
Angelo: One thing's bothering me. The only thing I wantta get
straightened out Ted. See, because I helped Storky [Stor-
cella] a lot. I don't know if Mike told ya. Did Mike tell ya?
Angelo: I helped him while he was up there before I came up. Ya
Angelo: And he didn't pay that back. In other words, ah-ah- Mike
gave him the thing you know to put food in the store.
Angelo: And ah -- and while I was out, I gave his wife money to
put food in his store.*fn3 Do ya follow what I mean?
Angelo: Only one thing I wanna know, Ted. I want the honest
truth. And -- because I gave you my -- I gave my word.
See, I gave him the fifteen hundred.
Angelo: Mike, I guess Mike told ya he got the five hundred right?
Ted: That who -- ah -- who did?
Ted: No. He didn't tell me much of anything.
Angelo: Well, anyway. Did you get your right amount?
Ted: Um -- ah -- h -- h --
Ted: No. I didn't get ...