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State v. Jordan

February 6, 1997

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT AND CROSS-APPELLANT,
v.
REGINALD JORDAN, DEFENDANT-APPELLANT AND CROSS-RESPONDENT.



On appeal from and certification to the Superior Court, Appellate Division, whose opinion is reported at 285 N.J. Super. 589 (1995).

The opinion of the Court was delivered by Garibaldi, J. Chief Justice Poritz and Justices Handler, Pollock, O'hern and Coleman join in Justice Garibaldi's opinion. Justice Stein filed a separate Dissenting opinion.

The opinion of the court was delivered by: Garibaldi

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

State of New Jersey v. Reginald Jordan (A-8/79-96)

Argued November 18, 1996 -- Decided February 6, 1997

GARIBALDI, J., writing for a majority of the Court.

The primary issue on appeal is whether the failure of the trial court to give jury instructions in accordance with State v. Hampton and State v. Kociolek, both individually and in the aggregate, constitutes plain error. Also addressed is whether these jury charges are necessary when the trial court gives a general credibility charge.

Joseph Thomas and Keith Dunlap decided to rob Calvin Lattany as he attempted to purchase heroin. Dunlap and Thomas approached Reginald Jordan to see if he had any drugs to sell to Lattany. Jordan agreed to participate in the robbery and retrieved a gun for that purpose. During the robbery, Dunlap and Thomas held Lattany from behind while Jordan pointed the gun at Lattany's head. A struggle ensued, Jordan aimed the gun at Lattany, the gun discharged, and Thomas was killed when Lattany ducked just as the gun was fired.

When questioned by police, Dunlap denied that he and Jordan had been involved in the incident. Lattany gave a statement to police wherein he identified Jordan and Thomas from photos. The police arrested Jordan and, after being advised of and waiving his rights, Jordan gave an oral statement. Jordan explained that he, Dunlap and Thomas were attempting to rob Lattany and the wrong man was shot. Jordan stated that Lattany ducked, the gun fired, and Thomas was shot and killed. After these oral admissions, police decided to tape-record Jordan's statement. In the tape-recorded version, Jordan stated, among other things, that in the struggle, Lattany smacked the gun causing it to discharge and kill Thomas.

A Middlesex County grand jury indicted Jordan for murder, attempted murder, armed robbery, and possession of a weapon for an unlawful purpose.

Prior to trial, a hearing was held on the admissibility of the two statements made by Jordan after his arrest. The trial court ruled that the statements were admissible, finding that, under the totality of the circumstances, the State had established beyond a reasonable doubt that Jordan knowingly, intelligently, and voluntarily gave the statements. In addition to defendant's statements, the State presented the testimony of Lattany and Dunlap at trial to support its position that Jordan knowingly and purposely fired the gun. Both Lattany and Dunlap testified that Lattany did not make contact with either the gun or Jordan.

A jury convicted Jordan on all counts. He was sentenced to life imprisonment with a thirty- year period of parole ineligibility.

On appeal, the Appellate Division majority concluded that the failure of the trial court to charge the jury in accordance with Hampton and Kociolek did not, in the context of this case, constitute plain error. Judge Pressler, in a Dissenting opinion, concluded that because the credibility of the two statements was so critical to the outcome of the case, the trial court's failure to provide Hampton and Kociolek charges was plain error, requiring reversal of the convictions.

Jordan filed a notice of appeal as of right and a petition for certification that raised issues not addressed in Judge Pressler's Dissenting opinion. The Court denied the petition. The Court granted the State's cross-petition on the issue of whether Hampton and Kociolek charges are necessary when the trial court gives a general credibility charge.

HELD :

The Hampton charge better safeguards a defendant's right to a fair trial than does a general credibility instruction. Given the mandate of N.J.R.E. 104(c) and the fact that a jury should be given more guidance, rather than less, especially in those cases in which a defendant's statements are critical to the State's case, specific Hampton and Kociolek instructions should be given. Based on the record in this case, failure to have given the specific charges, individually or in combination, is not reversible error per se.

1. In Hampton, the Court held that the trial Judge should make the determination of whether the Miranda warnings were given to a defendant and whether those rights were properly waived by the defendant before a statement was given. The Hampton principle is codified in New Jersey Rule of Evidence (N.J.R.E.) 104(c). Under that rule, it is for the Judge is to determine the admissibility of the statement out of the presence of the jury. The jury is not to be informed of the finding that the statement is admissible, but shall be instructed to disregard the statement if it finds that it is not credible. (pp. 8-11)

2. Under Kociolek, jurors are to be instructed that oral statements should be viewed with caution because of the generally recognized risk of inaccuracy and error in communication and recollection of oral statements and possible misconstruction by the listener. (pp. 11-13)

3. Jordan did not request and the trial court did not give a Hampton or a Kociolek charge. Under the plain error rule, any error or omission may be disregarded by an appellate court unless the error is clearly capable of producing an unjust result. (pp. 13-15)

4. Whether requested or not, whenever a defendant's oral or written statements, admissions, or confessions are introduced in evidence, the Hampton charge, directing the jury to determine the credibility of the statements without any knowledge that the court has already determined the issue of voluntariness, should be given. The use of the term "shall" in N.J.R.E. 104(c) is an express recognition that a Hampton charge is required. A trial court's failure to give the Hampton charge is not reversible error per se. Although the Hampton charge should have been given, the corroborating testimony of the two eyewitnesses constituted sufficient evidence to establish Jordan's guilt and, therefore, the omission of the charge was not plain error. (pp. 15-20)

5. The Kociolek charge also should be given whether it has been requested or not. Failure to give the charge, however, is not reversible error per se. The determination that the failure to give the Hampton charge is not plain error also supports the holding that the failure to give the Kociolek charge, in isolation or in combination with the failure to give the Hampton charge, did not have the capacity to bring about an unjust result. (pp. 20-23)

6. Comprehensive general credibility instructions do not obviate the need for the trial court to give the jury specific credibility instructions regarding a defendant's statements. General jury instructions may not always sufficiently impart to a jury its responsibilities and limitations. (pp. 23-25)

Judgment of the Appellate Division is AFFIRMED.

JUSTICE STEIN, Dissenting, is of the view that the omission by the trial court of the Hampton and Kociolek instructions was plain error and deprived Jordan of a fair trial.

CHIEF JUSTICE PORITZ and JUSTICES HANDLER, POLLOCK, O'HERN and COLEMAN join in JUSTICE GARIBALDI'S opinion. JUSTICE STEIN filed a separate Dissenting opinion.

The opinion of the Court was delivered by

GARIBALDI, J.

In this appeal, the primary issue is whether the failure of the trial court to give jury instructions in accordance with State v. Hampton, 61 N.J. 250, 294 A.2d 23 (1972), and State v. Kociolek, 23 N.J. 400, 129 A.2d 417 (1957), both individually and in the aggregate, constitutes plain error. We also consider whether the Hampton and Kociolek charges are necessary when the trial court gives a general credibility charge.

I.

Early Sunday morning, October 27, 1991, Calvin Lattany was driving to his girlfriend's house on Lawrence Street in New Brunswick. Lattany stopped on Nelson Street to speak to twelve-year old John Lambert. While Lattany and Lambert conversed, two young men walked towards them from a housing complex. The two men, Kenneth Dunlap and Joseph Thomas, approached Lattany. Lattany told them he wanted to purchase some heroin.

Thomas and Dunlap decided to rob Lattany once he took out the money for the drugs and they went to see if defendant, Reginald Jordan, had any heroin. Defendant agreed to participate and retrieved a gun. Dunlap and Thomas returned to Lattany and said they had located some heroin and that Lattany was to come with them. Lattany took some steps into the apartment complex when defendant appeared with a gun and pointed it at Lattany's head. Both Dunlap and Thomas held Lattany from behind. One of the men took the $30.00 Lattany was holding. Both Dunlap and Thomas tried to reach into Lattany's pockets to retrieve the rest of his money. Lattany resisted and the group moved him into a darker area.

Lattany's refusal to give up all of his money frustrated defendant. A struggle ensued, defendant aimed the gun at Lattany, the gun discharged, and Thomas, one of the robbers, was killed. Thomas was standing directly behind Lattany, who ducked just as the gun fired, and as a result, the bullet hit Thomas in the head. Thomas was pronounced dead on arrival at Perth Amboy General Hospital.

The police received several phone calls naming defendant and Dunlap as suspects. Detective John Selesky of the New Brunswick Police Department spoke with Dunlap. Dunlap failed to identify either himself or defendant as participants in the incident. Some time later, Lattany went to the police station and gave a statement. In Lattany's statement, however, he stated that they asked him if he wanted to buy drugs, but he declined. Lattany identified defendant and Thomas from a photo display.

Detectives John Selesky and Charles Clark arrested defendant at his sister's house in Franklin Township. Defendant, after being advised of and waiving his rights, gave a statement to the police. Defendant explained that he, Thomas, and Dunlap, were attempting to rob someone and the wrong guy was shot. Defendant explained that Lattany had ducked, the gun fired, and Thomas was shot and killed. After defendant's oral admissions, the police decided to tape-record a statement by defendant. In the tape-recorded version, defendant stated that he, Dunlap, and Thomas decided to rob a man seeking to purchase drugs, and in preparation for the robbery he retrieved a gun from a nearby car. Defendant stated that he knew little about guns and that he pulled the gun on Lattany as his cohorts searched him for money. Defendant stated that as his cohorts searched Lattany's pockets, Lattany began to struggle with the gun. Lattany smacked the gun, defendant asserted, causing it to discharge a bullet that hit Thomas in the head. Defendant contended that he tossed the gun into a garbage can and hid, taking nothing from the intended robbery victim.

A Middlesex County grand jury indicted defendant for murder, attempted murder, armed robbery, and possession of a weapon for an unlawful purpose. Defendant pled not guilty.

A hearing was held on the admissibility of the two statements made by defendant after his arrest. Defendant argued that he did not intelligently and voluntarily waive his rights and that the State should have asked defendant if he was under the influence of any drugs or alcohol before any statement was taken. Defendant added that the tape-recording of the statement was unnecessarily delayed. The State responded that defendant was contending that his statement was coerced because defendant regretted what he initially stated to the police. The trial court ruled the statements admissible, finding that under the ...


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