[168 NJSuper Page 419] The question before the court is a novel one in our State. May the State introduce evidence that, while awaiting trial on a murder indictment, defendant escaped from incarceration and fled the State, in an effort to show consciousness of guilt on the murder charge? I hold that such evidence may be admitted.
On December 15, 1975 one Robert Cooper was shot and killed while working at the Garfield Pistol Range in Garfield, New Jersey. At the time of his murder 26 weapons were stolen from the pistol range. Several days later defendant Bill Tomaras and two other persons were arrested in connection with this incident. Tomaras was subsequently indicted for first degree murder and incarcerated in the Bergen County Jail Annex. On December 25, 1977 he escaped from the jail and was apprehended some ten months later in New Mexico. He was returned to this jurisdiction to face trial on the murder indictment shortly thereafter.
The State contends that the escape constitutes flight which tends to show a consciousness of guilt of the crime for which defendant was incarcerated. It is true the 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. Andrial , 150 N.J. Super. 198, 200-201 (Law Div. 1977), and cases cited therein. The usual context in which this issue arises is when a defendant flees the scene of a crime, thereby allegedly demonstrating by his flight some involvement in that crime. Here, however, we are dealing with an escape from prison after arrest, indictment and incarceration for first degree murder.
Technically, an escape may be considered flight, since that term is defined in Black's Law Dictionary 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 * * *." This definition is sufficiently broad to encompass as escape such as occurred here. A defendant's "flight or attempts to escape" have been deemed probative of consciousness of guilt in a homicide case, Underhill's Criminal Evidence (4 ed. 1935), § 570, as well as of the commission of a criminal act in general. See e.g., McCormick on Evidence (2 ed. 1976), § 271; Wigmore on Evidence (3 ed. 1940), § 276; Wharton's Criminal Evidence (13 ed. 1972), §§ 144, 214 and 215.
It should be noted that there has been some criticism of the use of flight evidence where an accused flees the scene of a crime. The United States Supreme Court has indicated disagreement with the ancient maxim that "the wicked flee when no man pursueth, but the righteous are as bold as a lion,"*fn1 and has stated:
See also, United States v. Myers , 550 F.2d 1036, 1049 (5 Cir. 1977), aff'd after remand 572 F.2d 506 (5 Cir. 1978). In Myers the court stated:
[The] probative value as circumstantial evidence of guilt depends upon the degree of confidence with which four inferences can be drawn: (1) from the defendant's behavior to flight; (2) from flight to consciousness of guilt; (3) from consciousness of guilt to consciousness of guilt concerning the crime charged; and (4) from consciousness of guilt concerning the crime charged to actual guilt of crime charged. [550 F.2d at 1049]
It has been argued that flight from the scene of a crime, being of the ambiguous nature suggested by the Supreme Court in Alberty , does not support the second and fourth inferences of the above formulation. See, e.g., United States v. Jackson , 572 F.2d 636, 639 (7 Cir. 1978). When dealing with an escape, however, the inferences rest upon a firmer foundation. The reasons offered by the Supreme Court for flight by an innocent party, i.e. , a desire to avoid possible blame or involvement, do not apply where one has already been apprehended, indicted and incarcerated for an offense. Moreover,