On appeal from the Superior Court, Law Division, Middlesex County.
Approved for Publication December 14, 1995.
Before Judges Pressler, Wefing and A. A. Rodriguez. The opinion of the court was delivered by Wefing, J.A.D. Pressler, P.j.a.d., Dissenting.
The opinion of the court was delivered by: Wefing
The opinion of the court was delivered by WEFING, J.A.D.
Defendant was indicted and convicted for knowing and purposeful murder (N.J.S.A. 2C:11-3a(1), (2)); attempted murder (N.J.S.A. 2C:11-3(3)); robbery in the first degree (N.J.S.A. 2C:15-1); and possession of a weapon for an unlawful purpose (N.J.S.A. 2C:39-4a).
The trial court sentenced him to life in prison, with a thirty-year parole bar, for the murder conviction. The trial court imposed concurrent terms for the remaining convictions: twenty years, with a ten-year parole bar, for attempted murder; twenty years, with a ten-year parole bar, for first degree robbery; and ten years, with a five-year parole bar for possession of a weapon for an unlawful purpose.
The State presented evidence in support of the following scenario. Defendant, together with Joseph Thomas and Ken Dunlap, participated in an armed robbery of Calvin Lattany in the early morning hours of October 27, 1991 in New Brunswick. The incident occurred at 176 Memorial Parkway, a multi-unit apartment complex referred to throughout the trial as "the projects." Lattany was speaking to a friend, Johnnie Lambert, when Thomas and Dunlap approached him and asked if he wanted to purchase drugs. When Lattany responded affirmatively, Thomas and Dunlap went off in apparent search of drugs. Their plan, however, was not to sell drugs to Lattany but to use the drugs as a ploy so that Lattany would take out his money and they could then rob him.
Thomas and Dunlap approached defendant and outlined their scheme. He told the two he had several bags of heroin and agreed to participate. He also told them he knew the location of a gun. In his statement to the police, defendant merely said he knew there was a gun in a nearby garbage can and that he retrieved it. Dunlap testified that Jordan said the gun was his and that Jordan went over to a nearby car, reached underneath, and returned with the gun. The three went back to Lattany to complete their plot. It went awry, however, because Lattany resisted handing over his money. A struggle ensued, Jordan's gun discharged and Joseph Thomas, one of the plotters, was killed. Thomas was standing right behind Lattany who testified that he ducked just as the gun was fired and, as a result, the bullet struck Thomas.
The police investigation ultimately led to Jordan. He was arrested and interrogated. After waiving his Miranda rights ( Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966)), defendant gave two statements to the police: one oral in which he allegedly said he had aimed at Lattany, who ducked just as he fired the gun, and another, taped, in which he asserted that in the struggle, Lattany had struck the pistol causing it to discharge. This second version is, of course, inconsistent with knowing and purposeful murder.
On appeal, defendant raises six arguments:
POINT I THE TRIAL JUDGE COMMITTED REVERSIBLE ERROR WHEN HE FAILED TO CHARGE THE JURORS THAT THEY MUST DETERMINE THE CREDIBILITY OF DEFENDANT'S OUT-OF-COURT STATEMENTS, FAILED TO ADVISE THEM THAT THEY MUST FIND SUCH STATEMENTS TO BE CREDIBLE BEYOND A REASONABLE DOUBT AND FAILED TO ADVISE THEM THAT SUCH STATEMENTS MUST BE CORROBORATED BEFORE THEY COULD BE CONSIDERED AS EVIDENCE. (Not raised below)
POINT II THE COURT ERRED IN FAILING TO INSTRUCT THE JURY REGARDING THE UNRELIABLE NATURE OF TESTIMONY ATTESTING TO ORAL STATEMENTS MADE BY THE DEFENDANT. (Not raised below)
POINT III THE TRIAL COURT'S REFUSAL TO ALLOW DEFENDANT TO PRESENT EVIDENCE WHICH SUPPORTED THE THEORY OF THE DEFENSE VIOLATED DEFENDANT'S RIGHT TO PRESENT A DEFENSE AND HIS DUE PROCESS RIGHT TO A FAIR TRIAL BY A JURY. (U.S. CONST. AMENDS VI, XIV; N.J. CONST. ART. I, PAR. 1, 10.)
POINT IV AS TO COUNT ONE (KNOWING AND PURPOSEFUL MURDER), THE JUDGE'S CHARGE ON FLIGHT WAS ERRONEOUS AND DEPRIVED DEFENDANT OF A FAIR TRIAL ON THAT COUNT.
POINT V THE CUMULATIVE EFFECT OF THESE ERRORS DENIED DEFENDANT HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL AND A NEW TRIAL IS IN ORDER. (Not raised below)
POINT VI THE SENTENCE IMPOSED IN THIS CASE IS MANIFESTLY EXCESSIVE.
The record is clear in this matter that defendant did not request, and the trial court did not give, an instruction to the jury in accordance with State v. Hampton, 61 N.J. 250, 294 A.2d 23 (1972), that it was part of the jury's duty to determine the credibility of Jordan's out-of-court statements to the police. See, also, N.J.R.E. 104(c). Defendant must thus demonstrate that the omission of this provision from the trial court's instructions was "clearly capable of producing an unjust result." R. 2:10-2.
We are troubled by the apparent frequency with which trial courts are omitting this fundamental principle from their instructions. See, e.g., State v. Laboy, 270 N.J. Super., 296, 637 A.2d 184 (App. Div. 1994); State v. Setzer, 268 N.J. Super. 553, 634 A.2d 127 (App. Div. 1993), certif. denied 135 N.J. 468 (1994).
In Setzer, defendant was convicted of aggravated arson. A part of the prosecution's case was defendant's oral statement, which was neither taped or written, following waiver of his Miranda rights. This court, after carefully reviewing the trial court's charge as a whole, State v. Wilbely, 63 N.J. 420, 422, 307 A.2d 608 (1973) concluded that the "trial court's omission of the Hampton instruction in this instance was . . . not 'clearly capable of producing an unjust result.'" State v. Setzer, supra, 268 N.J. Super. at 565 (quoting R. 2:10-2).
In State v. Laboy, supra, defendant appealed following his convictions for murder and conspiracy to commit murder. After waiving his Miranda rights, defendant gave both an oral and a tape-recorded statement which recounted in detail his participation in the slaying. Again, the trial court, with no objection, failed to instruct the jury in accordance with State v. Hampton, supra. The trial court in Laboy also did not tell the jury to determine whether there was "independent proof of facts and circumstances which strengthen or bolster the confession and tend to generate a belief in its trustworthiness," State v. DiFrisco, 118 N.J. 253, 273, 571 A.2d 914 (1990), nor did it refer to "the generally recognized risk of inaccuracy and . . . misconstruction by the hearer" of oral admissions. State v. Kociolek, 23 N.J. 400, 421, 129 A.2d 417 (1957). Laboy is thus closely analogous to the instant matter since the trial court here made similar omissions.
In Laboy, we did not conclude that any one of these failures amounted to plain error. Defendant's conviction in that case was reversed on other grounds and we merely noted in dicta that the combination of those three omissions may have called for a reversal under State v. Orecchio, 16 N.J. 125, 106 A.2d 541 (1954). We specifically declined, however, to so hold.
We are satisfied, however, after a careful review of the record, that failure of the trial court to inform the jury in accordance with State v. Hampton, supra, does not, in the context of this matter, constitute plain error. Defendant did not deny that he killed Joseph Thomas. His defense centered around his contention that the shooting was accidental, the result of Lattany having struck the gun by accident during the struggle. That assertion was clearly set forth in defendant's tape-recorded statement. His prior oral statement, however, as recounted by Detectives Selesky and Clark, set forth a somewhat different rendition for in that defendant admitted firing at Lattany who escaped by ducking. The jury had to know and understand that they would have to decide which of these versions was credible. The matter is thus in sharp contrast to situations in which a defendant at trial denies either the act or the confession or both.
Defendant's attorney clearly outlined this choice to the jury in his summation, strongly arguing to the jury that defendant never made the unrecorded oral confession that the officers testified about. He pointed to things within the record to support that argument. The jury, by its verdict, clearly rejected that position. We consider the jury's verdict a clear statement that it did not consider credible defendant's tape-recorded version of what occurred.
We reach the same result, for essentially the same reason, on defendant's second argument, that the trial court committed plain error when it did not include in its final remarks to the jurors that the jury should consider evidence of the alleged oral statement "'with caution' in view of the generally recognized risk of inaccuracy and error in communication and recollection of verbal utterances and misconstruction by the hearer." State v. Kociolek, 23 N.J. 400, 421, 129 A.2d 417 (1957).
Such an instruction, if requested, should be given. Ibid.; State v. Kennedy, 135 N.J. Super. 513, 522, 343 A.2d 783 (App. Div. 1975); State v. Travers, 70 N.J. Super. 32, 38, 174 A.2d 747 (App. Div. 1961). Defendant has not identified a reported case in which a failure to include these principles within a trial court's ...