SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-5099-93T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
REGINALD JORDAN,
Defendant-Appellant.
________________________________________
Argued: October 11, 1995 Decided: December
14, 1995
Before Judges Pressler, Wefing and A. A.
Rodríguez.
On appeal from the Superior Court, Law
Division, Middlesex County.
Frank J. Pugliese, Assistant Deputy Public
Defender, argued the cause for appellant
(Susan L. Reisner, Public Defender, attorney;
Mr. Pugliese, of counsel and on the brief).
Linda K. Danielson, Deputy Attorney General,
argued the cause for respondent (Deborah T.
Poritz, Attorney General, attorney; Ms.
Danielson, of counsel and on the brief).
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 (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 (App. Div. 1994); State v. Setzer, 268 N.J. Super. 553 (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
(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 (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 (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 (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 (1957).
Such an instruction, if requested, should be given. Ibid.; State v. Kennedy, 135 N.J. Super. 513, 522 (App. Div. 1975); State v. Travers, 70 N.J. Super. 32, 38 (App. Div. 1961). Defendant has not identified a reported case in which a failure to include these principles within a trial court's final charge has been held plain error. Neither has our research disclosed such a case.
Nor do we see any error in the trial court not telling the jury that it should determine whether the alleged oral confession was corroborated by other evidence. Defendant relied on his tape-recorded statement, for which there was no corroboration. Clearly the trial court could not tell the jury it had to
consider whether the oral statement was corroborated but need not
consider whether the tape-recorded statement was corroborated.
In light of the clear testimony of Lattany and Dunlap about
the night's events, we reject defendant's contention that his
alleged oral statement was "critical" to the State's case. What
was critical to the State's case was whether the jury accepted
the testimony of Lattany and Dunlap for the credibility of both
was subject to serious challenge.
Lattany's testimony at trial differed from his statement to
the police in one regard, for when he initially approached the
police, some hours after the incident, he denied he had had any
intention to purchase drugs. He explained that discrepancy to
the jury and they were free to accept or reject his explanation.
Dunlap had, prior to defendant's trial, negotiated a plea
bargain for himself under which he pled guilty to robbery and
agreed to testify at defendant's trial. In return, the State
agreed to dismiss all remaining charges against him, which
included murder, and to recommend a sentence of time served.
Dunlap was cross-examined on the issue and defense counsel
attacked his credibility in his summation.
Both of these individuals, moreover, had criminal
convictions which were admitted for the jury's consideration on
their credibility.See footnote 1 With all of those elements weighing against
the credibility of Lattany and Dunlap, the jury accepted their
testimony nonetheless.
Lattany testified that just prior to his initial encounter with Dunlap and Thomas, he had been talking with Johnnie Lambert, a close family friend. Defendant sought to introduce, through Lambert, that Lambert had warned Lattany that Thomas was a "stick-up man." The trial court refused to permit defendant to introduce that evidence, saying it was an attack upon the character of the deceased.
We reject defendant's contention that this trial court ruling constituted reversible error. The admission of evidence at trial and the determination of whether that proffered evidence is relevant rests in the sound discretion of the trial court. State v. Catlow, 206 N.J. Super, 186, 193 (App. Div. 1985), certif. denied 103 N.J. 465, 466 (1986). We do not perceive that the trial court in any way abused its discretion in refusing to permit defendant to offer this testimony; that Lattany may have been forewarned about Thomas does not establish that he was more likely to strike out at defendant and thus cause defendant's gun to discharge.
At the time of this incident, defendant resided with one of his sisters in one of the apartment buildings at the site of the homicide. Defendant was arrested the following day at the home of another sister in Franklin Township. The State requested the trial court to include the concept of "flight" within its final instructions. Defense counsel objected and the trial court did not make an immediate ruling on the issue. It did, however, include the concept within its final instructions. Defendant now argues that that decision was reversible error. He does not contend that it was error not to inform defense counsel of his decision on the issue prior to summation.
We have long held that evidence of flight is generally admissible as demonstrating consciousness of guilt, State v. Mann, 132 N.J. 410, 418 (1993). Our cases have also recognized that mere departure is not equivalent with flight. "For departure to take on the legal significance of flight, there must be circumstances present and unexplained which, in conjunction with the leaving, reasonably justify an inference that it was done with a consciousness of guilt and pursuant to an effort to avoid an accusation based on that guilt." State v. Sullivan, 43 N.J. 209, 238-39 (1964), cert. denied 382 U.S. 990, 86 St. Ct. 564, 15 L.Ed.2d 477 (1966).
Defendant contends that since his departure was explainable (he did not wish to face charges of first degree robbery), it did not constitute flight. He also contends that, at the very least,
the trial court should have distinguished between flight as
evidence of guilt of robbery and as evidence of guilt of murder.
Defendant's distinctions are unavailing, however. One is no less
likely to flee from a homicide than from a robbery.
Finally, we consider defendant's last two contentions, that his convictions should be reversed under the doctrine of cumulative error State v. Orecchio, 16 N.J. 125 (1954) and that his sentence is manifestly excessive to be without merit. R. 2:11-3(e)(2). We merely add the following comments with regard to his sentence.
The law is well settled that we will not reduce a defendant's sentence absent a finding of clear abuse of judicial discretion. State v. Roth, 95 N.J. 334, 363 (1984). A reviewing court will only modify a defendant's sentence if "the application of facts to the law is such a clear error of judgment that it shocks the judicial conscience." Id. at 364. "The test, then, is not whether the reviewing court would have reached a different conclusion on what an appropriate sentence should be; it is rather whether, on the basis of the evidence, no reasonable sentencing court could have imposed the sentence under review." State v. Ghertler, 114 N.J. 383, 388 (1989).
It is not without significance that defendant's trial counsel was unable to point to a single mitigating factor at the time of sentence. Defendant had an extensive prior record and, indeed, had been out of jail only three days prior to this
incident. We decline to modify defendant's sentence in any
respect.
Defendant's convictions and sentence are affirmed.
Footnote: 1 We note that the trial court instructed the jury on the effect of these convictions during its final instructions to the jury. It did not separately instruct the jury at the time the witnesses testified. It is preferable that the jury know immediately of the limited purpose of such testimony. We have
not been provided with the transcript of jury selection. R. 2:5-3(b). It is inferable from one portion of the record that the trial court did provide preliminary instructions to the jury on that issue.