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State v. Green

Decided: June 10, 1981.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
NORMAN GREEN, DEFENDANT-APPELLANT



On certification to the Superior Court, Appellate Division.

For reversal and remandment -- Chief Justice Wilentz and Justices Pashman, Clifford, Schreiber, Handler and Pollock. For affirmance -- Justice Sullivan. The opinion of the Court was delivered by Schreiber, J. Sullivan, J., dissenting.

Schreiber

Defendant Norman Green was indicted, tried and convicted by a jury of rape, possessing a razor while committing the rape, robbery, and possessing a razor while committing the robbery. He was sentenced to an aggregate term of 19 to 25 years. The Appellate Division summarily affirmed. R. 2:11-3(e)(2). We granted defendant's petition for certification. 85 N.J. 141 (1980).

Defendant contends that reversal is justified because of the incompleteness of the record due to the court reporter's failure to record the testimony accurately (the record was subsequently reconstructed by the trial court), the excessiveness of the sentence and the inadequacy of the jury charge. In view of our conclusion we find it necessary to consider only the inadequacy of the charge.

There was a sharp dispute in the evidence with respect to the rape and the related charges. A summary of the essential facts will suffice for the purpose of this opinion.

The primary witness for the State was the victim, Joyce Wadley. According to Ms. Wadley, on May 24, 1976, following a quarrel with her boyfriend, she returned alone to their apartment on South 10th Street, Newark. She had misplaced the key and was waiting on the front porch for his return.

About 12:30 a.m. a strange man, whom she later identified as the defendant, was walking down the street. He stopped and asked her for a match. Though it was dark, she could see his face because of a street lamp located in front of the building. While ascending the porch steps, this man asked her name and her astrological sign. He said he was a Leo. He maneuvered

himself behind Ms. Wadley and placed a razor on the right side of her neck. Maintaining his position behind her, he forced her to walk behind the house, across the street and into a school yard. There in an alley he compelled her to turn over all her money, two dollars, and then raped her.

Later, while returning to the street, she broke away and a passerby in an automobile stopped and assisted her to a telephone. The police arrived. Ms. Wadley was taken to the Presbyterian Hospital in Newark, examined and treated. According to the hospital report she had "contusions at the right side of [her] neck," was "very nervous" and had a tampon "pushed up inside [her] vagina."

Detective Wright of the Newark Police obtained a description of the incident. A suspect was brought to the hospital, but Ms. Wadley asserted he was not her attacker. Detective Wright showed her many photographs at police headquarters but she was unable to identify her assailant among them.

About a month later in June 1976, Ms. Wadley, while in the company of Bobby Caldwell, saw the defendant and said she recognized him as her assailant. Caldwell was acquainted with him, but did not know his name. She telephoned Detective Wright, but was told he was on vacation, a fact which he denied at the trial. Several months later, she saw the defendant in a bar. When the defendant left, she asked the bartender if he knew him and where he lived. The bartender indicated the apartment house in which defendant resided.

On April 14, 1977, accompanied by a friend, she conducted a surveillance of the premises and identified defendant's precise location. The police, who were then called, came and arrested defendant. On May 6, 1977, Ms. Wadley gave Detective Wright another description of the defendant.

Defendant, who had no prior record, was 23 years old and employed at the time. He vehemently denied the entire incident and claimed that he had been living with a woman for about seven years. He admitted he was born on a date in

August that put him under the astrological sign Leo. He used a box cutter razor in his job, lived in the neighborhood, and walked by the South 10th Street address daily.

Ms. Wadley had originally described her assailant as being slightly over 5'3" tall, weighing about 130 to 140 pounds and having a medium size Afro hair style. It was not until her statement on May 6, 1977 that she said that her assailant had a broken tooth. In fact, defendant was 5'9" tall and weighed 165 pounds. He did have a broken tooth.

The trial court generally charged the jury on its fact finding responsibility, the elements of each of the crimes and the State's burden of proof. Defendant objected to the charge, requesting the court to instruct "the jury with standards as to identification since identification is very much at issue in this case." The court refused to charge on identification. The jury interrupted its deliberations to request a reading of Ms. Wadley's testimony describing her assailant. It deliberated from 11:25 a.m. to 8:00 p.m., and continued its consideration the next day, returning a verdict of guilty on all counts at 4:00 p.m.

We granted defendant's petition for certification primarily to consider the propriety of the trial court's refusal to instruct the jury with respect to identification.

I

Appropriate and proper charges to a jury are essential for a fair trial. See Gabriel v. Auf Der Heide-Aragona, Inc., 14 N.J. Super. 558, 563-564 (App.Div.1951). It is at this point in the trial before the jury retires to deliberate and resolve the factual issues that the trial court should explain to the jury in an understandable fashion its function in relation to the legal issues involved. Jurman v. Samuel Braen, Inc., 47 N.J. 586, 591-592 (1966) ("court's instructions must . . . correctly state the applicable law in understandable language"). Entailed is ...


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