On appeal from the Superior Court, Appellate Division, whose opinion is reported at 151 N.J. Super. 555 (1977).
For reversal -- Chief Justice Hughes and Justices Mountain, Sullivan, Clifford, Schreiber and Handler. For affirmance -- Justice Pashman. The opinion of the court was delivered by Schreiber, J. Handler, J., concurring. Justice Clifford joins in this opinion. Pashman, J., dissenting. Clifford and Handler, J.J., concurring in the result.
[78 NJ Page 455] Defendant was convicted in a jury trial of breaking and entering with intent to steal and was sentenced to serve a three-to-five-year term in State Prison. On appeal the Appellate Division, one judge dissenting, reversed. The majority found that the failure to instruct the jury that voluntary intoxication could negate the specific intent element
of the offense charged constituted reversible error. It also held that introduction into evidence of certain prior convictions of the defendant was erroneous. 151 N.J. Super. 555 (App. Div. 1977). Judge Allcorn dissented on both issues, giving rise to this appeal as of right. R. 2:2-1(a).
The facts are substantially undisputed. On August 21, 1974, Mr. and Mrs. Maggipinto, who lived in a one-family dwelling in Union, N.J., retired for the night at approximately 10:00 P.M., their two children having gone to bed earlier in the evening. When they went to bed a 12-inch portable television weighing about 50 pounds was left in its usual position on the kitchen cabinet, plugged into the outlet and with the "rabbit ears" antenna extended in a "V" position.
At approximately 12:15 A.M., the Maggipintos were awakened by a loud noise. Upon going downstairs to investigate, they discovered the defendant standing in the den. Seeing that the defendant had nothing in his hand, Mr. Maggipinto grabbed defendant and brought him into the kitchen, and Mrs. Maggipinto returned upstairs and telephoned the police. Upon being apprehended by Mr. Maggipinto, defendant asked for a cigarette and stated a number of times that he was in the wrong house.
The television set had been moved a distance of about 10 feet from the kitchen cabinet to the dining room. It was no longer plugged in, the plug was wrapped around the handle on the top of the set, and the "rabbit ears" were no longer extended. A clock which had been on top of the set had been placed on the floor. Mr. Maggipinto testified that the defendant pointed to the television and said, "I just want to take your TV."
The Union Township police arrived in about five minutes. The arresting officer testified that defendant had a "normal appearance" with an "odor of alcohol beverage on his breath." The officer questioned the defendant about his consumption of alcohol, and defendant, whose speech was not slurred, told him he had had "a few" drinks. On cross-examination Mrs.
Maggipinto testified that the defendant did not appear intoxicated at all.
The defendant, his hands placed in handcuffs behind his back, walked with no difficulty from the kitchen to the front entrance, down a flight of eight or nine steps and then to the police car. He exhibited no signs of intoxication during the ride to the police station. At police headquarters he stated his name and address and recited his social security number from memory. His speech was not slurred.
During questioning later in the morning, defendant appeared normal and did not complain of feeling ill. He explained that he walked from the Blue Ribbon Tavern in Hillside to the Maggipinto home, a distance of approximately one mile, that he entered the house believing it to be the home of a girlfriend who lived next door to the Maggipinto home, and that he entered through the basement so as not to alert her husband. Detectives canvassed the area but were unable to locate the residence of the alleged girlfriend or anyone bearing the same name. Subsequent investigation revealed that a lock on a basement window in the Maggipinto home had been broken, the window pushed open and the door from the basement to the kitchen forced.
At trial the defendant did not take the stand. However, three defense witnesses testified that they had observed the defendant in an intoxicated condition earlier in the day. The evidence suggested that defendant had been drinking all day. His business partner testified that when he last saw defendant at approximately 6:30 P.M. defendant was totally drunk and had a bottle in his hand.
At the close of defendant's case the State moved that the court not give an intoxication instruction on the ground that there was no direct evidence that defendant was intoxicated at the time of the crime. The trial judge denied the motion. However, he did charge the jury:
[T]here is testimony and evidence in the case that indicates a voluntary consumption of alcoholic beverages by the defendant prior to
the time that he is alleged to have committed the offense charged ...