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State v. Tomaras

Decided: May 14, 1982.


On appeal from Superior Court, Law Division, Bergen County, whose opinion is published at 168 N.J. Super. 418.

Botter, Antell and Furman. The opinion of the court was delivered by Botter, P.J.A.D.


[184 NJSuper Page 552] Defendant was convicted in a jury trial of the murder of Robert Cooper and of other charges contained in the same indictment, namely, armed robbery, assault with intent to kill and acquiring a firearm while under 18 years of age. Defendant was sentenced to a life term for the murder, with a concurrent term of one to three years on the firearm conviction. The convictions for robbery, armed robbery and assault with intent to kill were vacated as having merged with the conviction

for murder under the first count of the indictment. See State v. Nichols, 71 N.J. 358, 360-361 (1976). This appeal followed.

Defendant was originally charged in December 1975 with juvenile delinquency based upon the killing of Robert Cooper. Following a hearing, jurisdiction of the Juvenile and Domestic Relations Court was waived so that defendant could be prosecuted as an adult. N.J.S.A. 2A:4-48; R. 5:9-5(b). An appeal was taken from the order waiving jurisdiction and this court affirmed that determination. Thereafter, our Supreme Court denied defendant's petition for certification. State in the Interest of B.T., 145 N.J. Super. 268 (App.Div.1976), certif. den. 73 N.J. 49 (1977).*fn1

Defendant's first contention on this appeal is, "The Appellate Division erred in upholding the waiver of jurisdiction over the juvenile defendant." The brief filed for defendant argues that the previous decision of this court in State in the Interest of B.T., supra, was based on an erroneous analogy between a probable cause hearing and a grand jury hearing. The brief also contends that there was "insufficient legally competent evidence to sustain a finding of probable cause at the jurisdictional waiver hearing held in the juvenile court," and that "[t]he denial of a meaningful opportunity to cross-examine constituted a denial of due process."

We refused to entertain oral argument seeking to demonstrate that the waiver of jurisdiction was incorrectly upheld on the previous appeal. What was decided in that appeal became the law of the case and could not be relitigated here even if the issue is of constitutional dimension. State v. Smith, 43 N.J. 67, 74 (1964), cert. den. 379 U.S. 1005, 85 S. Ct. 731, 13 L. Ed. 2d 706 (1965); State v. Cusick, 116 N.J. Super. 482, 485 (App.Div.1971);

see United States v. U.S. Smelting, Refining & Mining Co., 339 U.S. 186, 198, 70 S. Ct. 537, 544, 94 L. Ed. 750 (1950). The correctness of the jurisdictional order cannot be relitigated on this appeal.

The remaining contention advanced on defendant's behalf is that the trial judge committed reversible error in admitting proof that defendant escaped from the Bergen County Jail Annex while awaiting trial on the indictment. Testifying in his own defense defendant explained that he escaped because he had been "kept there for over a period of two years with every trial date being postponed, and . . . was locked up in a small cell and beaten up." Defendant argues that his escape from jail was more likely caused by his experience there as a youth (he was 17 years old when arrested in December 1975) than by consciousness of guilt. United States v. Myers, 550 F.2d 1036 (5 Cir.1977), cert. den. 439 U.S. 847, 99 S. Ct. 147, 58 L. Ed. 2d 149 (1978), is cited (at 1051) for the proposition that "[t]he more remote in time the alleged flight is from the commission or accusation of an offense, the greater the likelihood that it resulted from something other than feelings of guilt concerning that offense."

It has been said that proof of flight from justice and its analogous conduct, such as escape, resistance and concealment "have always been deemed indicative of a consciousness of guilt." II Wigmore, Evidence (3 ed. 1940), ยง 276 at 111. Wigmore goes on to say:

It is to-day universally conceded that the fact of an accused's flight, escape from custody, resistance to arrest, concealment, assumption of a false name, and related conduct, are admissible as evidence of consciousness of guilt, and thus of guilt itself. . . . [ Id. ]

This principle was accepted in State v. Young, 97 N.J.L. 501, 504 (E. & A. 1922), where the court held that defendant's attempt to obtain implements that he could use to escape from jail were competent evidence whose "weight on the question of conscious guilt . . . was for the jury." The court opined that an attempt to escape from prison "would perhaps ...

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