(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).
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.
SUPREME COURT OF NEW JERSEY
A-8/
79 September Term 1996
STATE OF NEW JERSEY,
Plaintiff-Respondent
and Cross-Appellant,
v.
REGINALD JORDAN,
Defendant-Appellant
and Cross-Respondent.
Argued November 18, 1996 -- Decided February 6, 1997
On appeal from and certification to the
Superior Court, Appellate Division, whose
opinion is reported at
285 N.J. Super. 589
(1995).
Frank J. Pugliese, Assistant Deputy Public
Defender, argued the cause for appellant and
cross-respondent (Susan L. Reisner, Public
Defender, attorney).
Linda K. Danielson, Deputy Attorney General,
argued the cause for respondent and cross-appellant (Peter G. Verniero, Attorney
General of New Jersey, attorney).
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, 6l N.J. 250 (l972), and State v. Kociolek,
23 N.J. 400 (l957), 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.
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
totality of the circumstances, the State established beyond a
reasonable doubt that defendant knowingly, intelligently, and
voluntarily gave the statements.
In addition to the out-of-court statements of defendant, the
State presented the testimony of the robbery victim, Lattany, and
the surviving accomplice to the robbery, Dunlap, to support its
position that defendant knowingly or purposely fired the gun.
Both state witnesses admitted, on direct examination, lying to
the police when first questioned about their involvement in the
incident.
Lattany testified that he was robbed by Dunlap and Thomas
when he attempted to purchase drugs. He explained that during
the incident, defendant pulled a gun and pointed it at his head
as the other two men stood behind him, holding him, and attempted
to get into his pockets. Lattany testified that defendant pulled
a gold chain off his neck, took a step back, aimed the gun at
Lattany's head, and fired. Lattany explained that he moved out
of the way just as the gun fired, resulting in the fatal injury
to Thomas. Finally, Lattany stated that he never hit or made any
contact with defendant or the gun.
Pursuant to a plea bargain, Dunlap also testified for the
State. Dunlap stated that during the robbery, defendant became
agitated when Lattany refused to give up his money. Dunlap
testified that defendant pointed the gun at Lattany's face and
that somehow Lattany moved when defendant fired, resulting in
Thomas being shot. Finally, Dunlap corroborated Lattany's
testimony that at no time did Lattany make contact with the gun
or with defendant.
Lambert was the main defense witness. Lambert could only
indicate, however, that he heard the gunshot and then saw Lattany
run toward him. Lambert testified that he was tying his shoes
when the shot was fired and did not witness the confrontation
between the three assailants and Lattany.
After deliberating less than two hours, the jury convicted
defendant on all counts. On the murder conviction, defendant was
sentenced to life imprisonment with a thirty-year parole
disqualifier. The sentences on the other counts were to run
concurrent with the murder sentence.
On appeal, the Appellate Division majority expressed its
concern about the apparent frequency with which trial courts were
omitting the Hampton charge from their instructions.
Nevertheless, it concluded, after a careful review of the record,
that the failure of the trial court to charge in accordance with
Hampton did not in this context constitute plain error. State v.
Jordan,
285 N.J. Super. 589, 594-95 (l995). The court observed
that defendant did not deny that he killed Joseph Thomas. Id. at
595. The majority explained that the defense argued that the
shooting was accidental, the result of a struggle between
defendant and the robbery victim. That assertion was clearly set
forth in defendant's recorded statement. Ibid. Because the
defendant's initial oral statement, recounted by two detectives,
presented a different version of the incident, the jury had to
decide which version of the stories to accept as credible. Ibid.
The majority concluded: "We consider the jury's verdict a clear
statement that it did not consider credible defendant's tape-recorded version of what occurred." Id. at 596.
With respect to the court's failure to give a Kociolek
charge, the court refuted defendant's argument that his oral
statement was the critical evidence. Instead, "[w]hat 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." Id. at 597. Despite factors
weighing against their credibility, the court found that the jury
accepted their testimony. Ibid. Hence, the lack of a Kociolek
charge was also not plain error. Ibid.
Judge Pressler, dissenting, observed that if the jury
believed the recorded statement, defendant would have been
convicted of a lesser offense. Therefore, she concluded that
because the credibility of the two statements was so critical to
the outcome of the case, the court's failure to provide Hampton
and Kociolek charges was plain error. Id. at 603 (Pressler,
P.J.A.D., dissenting). Accordingly, Judge Pressler concluded
that the case should be reversed and remanded. Ibid. Although
Judge Pressler observed that she need not decide the question in
this case, she nevertheless expressed the view that the failure
to provide a Hampton charge was plain error per se. Id. at 606.
Defendant filed a notice of appeal as of right. R. 2:2-l(a)(2). Defendant also filed a petition for certification on
other issues raised but not addressed by the dissenting opinion.
We denied that petition. l
43 N.J. 5l8 (l996). We nevertheless
granted the State's cross-petition for certification that asserts
that neither Hampton and Kociolek charges are necessary when the
trial court gives a general credibility charge.
146 N.J. 498
(l996).
outside the presence of the jury. Ibid. The defendant testified
during the hearing. Ibid. His testimony raised no substantial
conflict with respect to the Miranda warnings, his execution of
the waiver, or his willingness to give a statement. The trial
court ruled the statement admissible. Id. at 261. Hampton's
trial continued in the presence of the jury and the State offered
the defendant's statement into evidence. Ibid. Defense counsel
objected, noting that defendant was not going to testify on the
subject. Ibid. The trial court, cognizant of the rule that the
court could not inform the jury of an earlier ruling that the
confession was voluntary, found the statement admissible and
informed the jury that the court would not decide the
voluntariness of the statement. Ibid. Instead, the trial court
instructed the jury that the decision whether the statement was
voluntary or not was for the jury. Ibid. The court further
instructed the jury that if it found that the statement was not
voluntary it should disregard it. Ibid.
Addressing defendant's claim that the jury charge was
prejudicial, we agreed with the Appellate Division and held that
the charge as a whole was not prejudicial. Id. at 263. Allowing
the jury to address the voluntariness of the confession as if
there were a "factual dispute as to whether the Miranda rule had
been complied with, and whether defendant's rights thereunder had
been waived . . . benefitted rather than prejudiced [defendant]."
Id. at 263-64.
We concluded that "there is no constitutional obligation to
submit to the jury for determination the issue of whether the
Miranda warnings were given to a defendant and the rights
described thereby waived by him before he confessed. Since the
question involves the competency of evidence, decision thereon
traditionally rests with the trial judge." Id. at 267. In the
future, however, we required that
the trial court alone shall determine (1) whether the
Miranda warnings were given to the accused and his
rights thereunder waived by him before the confession
was given; and that if it finds the warnings were not
given, or if given the rights not waived, the
confession must be excluded, and (2) if those
conditions were satisfied, whether in light of all
those circumstances attending the confession it was
given voluntarily. If these questions are resolved in
favor of the State, then, without being advised of the
court's decision, the jury shall be instructed that
they should decide whether in view of all the same
circumstances the defendant's confession is true. If
they find that it is not true, then they must treat it
as inadmissible and disregard it for purposes of
discharging their function as fact finders on the
ultimate issue of guilt or innocence.
See also State v. Thomas, 76 N.J. 344, 366 (1978) (reaffirming Hampton principle that trial court is sole arbiter of voluntariness of defendant's statements and rejecting defendant's invitation to overrule decision); State v. Bowman, 165 N.J. Super. 531, 537-39 (App. Div. 1979) (holding prosecutor's statement to jury on summation that trial court had previously found defendant's two confessions voluntary constituted reversible error even though trial court gave Hampton charge,
because it failed to instruct jury to disregard prosecutor's
statement).
The New Jersey Rules of Evidence codified the holding in
Hampton and state:
Where by virtue of any rule of law a judge is required
in a criminal action to make a preliminary
determination as to the admissibility of a statement by
the defendant, the judge shall hear and determine the
question of its admissibility out of the presence of
the jury. In such a hearing the rules of evidence
shall apply and the burden of persuasion as to the
admissibility of the statement is on the prosecution.
If the judge admits the statement the jury shall not 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. If the
judge subsequently determines from all of the evidence
that the statement is not admissible, the judge shall
take appropriate action.
the instructions that should be given to the jury regarding those
statements. The defendant was convicted of first-degree murder
and sentenced to death. However, the death sentence was
reversed. State v. Kociolek,
20 N.J. 92 (1955). During the
initial trial, several of the defendant's oral admissions were
admitted in evidence through the testimony of witnesses recalling
the statements made by the defendant. Kociolek, supra, 23 N.J.
at 405.
We explained that the trial court erred in refusing to
charge the jury that it should "receive, weigh and consider such
evidence 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." Id. at 421. We
added that "there are inherent weaknesses in this character of
testimony: faulty memory, the danger of error in understanding
and repetition." Ibid. (citation omitted). Observing that all
verbal admissions are to be viewed with caution, we opined
"[a]side from the danger of fabrication, verbal admissions are
regarded as unreliable evidence, because experience shows that
they are frequently misunderstood, imperfectly remembered, and
inadvertently made." Ibid. (citation omitted).
The antidote for the general distrust associated with
testimony reporting any extra-judicial oral statements, is "an
instruction to the jury against trusting overmuch the accuracy of
such testimony." Ibid. We observed, "verbal precision is of
course important to the correct understanding of any verbal
utterance, whether written or oral, because the presence or
absence or change of a single word may substantially alter the
true meaning of even the shortest sentence." Id. at 421-22.
Rule 2:10-2 reads:
Any error or omission shall be disregarded by
the appellate court unless it is such a
nature as to have been clearly capable of
producing an unjust result, but the appellate
court may, in the interests of justice,
notice plain error not brought to the
attention of the trial or appellate court.
In this case, defendant did not request and the trial court did
not give a Hampton or Kociolek charge. Defendant seeks reversal
under the "plain error" standard, arguing that those omissions
from the trial court's instructions were "clearly capable of
producing an unjust result."
"Appropriate and proper charges to a jury are essential for
a fair trial." State v. Green,
86 N.J. 281, 287 (1981). A court
must provide proper instructions to a jury because the "faithful
performance of a court's duty of expounding the law for the
jury's guidance and instruction, requires a plain and clear
exposition of the issues." Id. at 288. The jury charge should
therefore cover all essential matters. Ibid.; see, e.g., State
v. Masino,
94 N.J. 436, 447 (1983) (noting trial court's
kidnapping charge to jury, although not paragon of clarity,
allowed jury to consider necessary factors).
Proper jury charges in criminal cases are even more
critical. In Green, supra, this Court observed: "This
requirement of a charge on a found matter is more critical in a
criminal case when a person's liberty is at stake." 86 N.J. at
289. Erroneous instructions on matters or issues that are
material to the jury's deliberation are presumed to be reversible
error in criminal prosecutions. State v. Warren, l
04 N.J. 57l,
579 (l986).
For an error to constitute plain error, however, not every
possibility of an unjust result will suffice. With a jury trial,
the possibility must be "sufficient to raise a reasonable doubt
as to whether the error led the jury to a result it otherwise
might not have reached." State v. Macon,
57 N.J. 325, 336
(1971).
In considering a jury charge, plain error is
Legal impropriety in the charge prejudicially affecting
the substantial rights of the defendant sufficiently
grievous to justify notice by the reviewing court and
to convince the court that of itself the error
possessed a clear capacity to bring about an unjust
result.
[State v. Hock,
54 N.J. 526, 538 (1969),
cert.denied, 399 U.S. ___, 930,
90 S. Ct. 2254,
26 L. Ed.2d 797 (1970); accord State
v. Lucas,
30 N.J. 37 (l959).]
In determining whether a charge was erroneous, the charge must be read as a whole. State v. Wilbely, 63 N.J. 420, 422 (1973).
"Portions of a charge alleged to be erroneous cannot be dealt
with in isolation but the charge should be examined as a whole to
determine its overall effect." Ibid. (citations omitted). No
party is entitled to have the jury charged in his or her own
words; all that is necessary is that the charge as a whole be
accurate. Largey v. Rothman,
110 N.J. 204, 206 (1988); State v.
Thompson,
59 N.J. 396, 411 (1971).
Some jury instructions, however, are so crucial to the
jury's deliberations on the guilt of a criminal defendant that
errors in those instructions are presumed to be reversible.
"Errors impacting directly upon these sensitive areas of a
criminal trial are poor candidates for rehabilitation" under the
plain error theory. State v. Simon,
79 N.J. 191, 206 (1979).
For example, the court must always charge on the elements of the
crime. State v. Vick,
117 N.J. 288, 291 (1989). In State v.
Orecchio,
16 N.J. 125 (1954), the Court observed:
No matter how abhorrent the offense charged nor how
seemingly evident the guilt, [everyone] is entitled to
a fair trial surrounded by the substantive and
procedural safeguards which have stood for centuries as
bulwarks of liberty in English speaking countries.
Rules of Evidence are designed to `insure to a defendant an
unfettered factual consideration by the jury of the credibility
of all or part of his confession.'" Id. at 74 (citing Bowman,
supra, 165 N.J. Super. at 537). The court concluded that the
failure of the trial court to apprise the jury of its
responsibility regarding the assessment of the statement had the
clear capacity to "seriously prejudice defendant's rights."
Ibid. (citing Green, supra, 86 N.J. at 287-89.
More recently, in State v. Jackson,
289 N.J. Super. 43 (App.
Div. 1996), the trial court denied the defendant's request for
Hampton and Kociolek charges. The Appellate Division found that
because the jury's consideration of the defendant's statement
could have been central to the case, a clear instruction was
mandatory. Id. at 54. In a footnote, the court explained, "it
is a close question whether the failure to give a requested
Hampton/Kociolek charge is per se reversible error." Id. at 54
n.2. Commenting on Judge Pressler's dissent in Jordan, supra,
the court noted, "we cannot subscribe to the Jordan dissent's per
se error rule, even for a requested charge." Ibid. The Jackson
court explained that in an appropriate case the error may be
harmless:
For instance if the crime had been videotaped and it
was committed before numerous unimpeachable witnesses
with strong additional circumstantial evidence, the
failure to give a requested Hampton/Kociolek charge
concerning a defendant's oral statements should not
justify the time or expense of a retrial.
The Appellate Division has also held that the failure of a
trial court to provide a Hampton charge, notwithstanding the
defendant's failure to request such a charge, constitutes plain
error. For example, in State v. Nutter,
258 N.J. Super. 41 (App.
Div. 1992), the court held that it was error not to instruct a
jury on its duty to determine if the defendant's statement made
to the police was credible. Id. at 60. Because the court had
already decided a retrial was necessary on other grounds, it
provided no further comment on the Hampton issue. See also State
v. Jones,
287 N.J. Super. 478, 484 (App. Div. 1996) (holding that
trial court committed reversible error in not instructing jury to
determine credibility of incriminating statements attributed to
defendant by state trooper).
The Appellate Division, however, has also held that the
failure to give a Hampton charge is not plain error. In State v.
Setzer,
268 N.J. Super. 553 (App.Div. 1993), certif. denied, l
35 N.J. 468 (l994), the defendant had commenced a relationship with
Traci Horn, who was engaged in a custody battle with her former
husband over their daughter. The court had awarded temporary
custody of the child to Stewart Horn, Ms. Horn's ex-husband. Id.
at 558. Ibid. On May 1, 1990, the defendant and Traci set
Stewart's apartment on fire.
After an investigation, the defendant and Traci were
apprehended. Id. at 560. Traci admitted her involvement in
setting the fire and implicated the defendant. Ibid. The
defendant was advised of his rights, signed a Miranda card, and
gave a statement. However, his statement was neither recorded
nor taped. Ibid. Initially, he denied involvement, but when
confronted with Traci's admissions the defendant admitted his
involvement. Ibid.
The court then addressed the defendant's claim that the lack
of a Hampton charge constituted plain error. Id. at 562.
Reviewing the charge as a whole, the court concluded:
The trial judge clearly and repeatedly instructed the
jury that it was to consider the credibility of all of
the testimony, which included the testimony as to the
defendant's statement. The trial court's omission of
the Hampton instruction in this instance was therefore,
not clearly capable of producing an unjust result.
believed: the earlier version contained in defendant's initial
statement where he admitted shooting the wrong person which was
consistent with the eyewitness accounts; or the version found in
the tape-recorded statement in which he stated that a struggle
between himself and the robbery victim caused the gun to
discharge.
Based on the trial court's instructions to the jury, and
defense counsel's arguments urging the jury to believe
defendant's taped statement and find that the first statement to
the police "never existed," we are satisfied that the jury knew
that it had to decide between the credibility of defendant's two
statements. See State v. Maldonado, l
37 N.J. 536, 575 (l994)
("[T]he circumstances of the trial highlighted [the need to
determine credibility] more than any charge could have."). Given
the jury's focus on those two statements, the Hampton charge was
not required.
Nevertheless, the Hampton charge should have been given
based on the directive in N.J.R.E. 104(c). Here, however, the
corroborating testimony of the two eyewitnesses constituted
sufficient evidence to establish defendant's guilt, and the
omission of the Hampton charge was not plain error capable of
producing an unjust result.
Kociolek, is reversible as plain error. None of those cases,
however, have held that the lack of a Kociolek charge constitutes
plain error.
In State v. Campisi,
47 N.J. Super. 455 (App. Div. 1957),
certif. denied,
26 N.J. 304 (l958), the defendant was arrested
for possession of heroin. Upon his arrest, the defendant
initially denied any knowledge of the narcotics that police
discovered in a jacket inside the defendant's closet. Id. at
457. The defendant later admitted to a detective that he had
used heroin. Id. at 457-58. The defendant also privately
admitted to a detective that he owned narcotics and used heroin.
Id. at 458. At trial, the detective testified about the
admissions made by the defendant. Ibid.
The court rejected the defendant's claim that the lack of a
Kociolek charge constituted plain error and observed that "we
perceive no plain error affecting the substantial rights of this
appellant in the context of the whole of the proofs." Id. at
460. The court remarked:
While we apprehend the dangers incident to resting a
concept of guilt upon such verbal admissions in that
there should be special protection against the
possibility of faulty memory, error in accurate
understanding and repetition, . . . we sense in the
proofs of this case, an absence of such injustice.
for armed robbery that the failure to charge the jury to consider
the defendant's oral statements with caution, was not plain
error. Id. at 38.
More recently, in State v. Laboy,
270 N.J. Super. 296 (App.
Div. 1994), the Hampton and Kociolek charges were not requested
and not given. Because of its disposition of the appeal, the
court was not required to decide whether the failure to give the
charges individually or in the aggregate constituted plain error.
The court however, noted only that "viewed in isolation . . .
these errors would not have the capacity to lead to an unjust
result." Id. at 310-11. The court also opined that the failure
to charge under Kociolek, in combination with other errors, such
as the failure to provide a Hampton charge, at least arguably
could have affected the substantive rights of the defendant. Id.
at 311.
Like the Hampton charge, the Kociolek charge should be given
whether requested or not. Oral statements should be viewed with
caution because of the "generally recognized risk of inaccuracy
and error in communication and recollection of verbal utterness
and misconstruction by the hearer." Kociolek, supra, 23 N.J. at
42l. However, failure to give the charge is not reversible error
per se. There may be a rare case where failure to give a
Kociolek charge alone is sufficient to constitute reversible
error, or there may be a case where the omission of a Kociolek
charge in combination with other errors (for example, no Hampton
charge) may be reversible as plain error. Ultimately, whether
the failure to give a Kociolek charge is capable of producing an
unjust result will depend on the facts of each case.
In this case, our determination that the failure to give the
Hampton charge is not plain error also supports our 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.
that the trial court failed to instruct the jury to determine if
the defendant's statement to the police was credible. 258 N.J.
Super. at 59. The court observed that "nothing in the charge,
taken as a whole, can be viewed as ameliorating this error which
is conceded by the State and which could have affected the
outcome here." Id. at 60.
The Appellate Division has also held, however, that general
credibility instructions are sufficient absent a specific Hampton
charge. In State v. Setzer, supra, the trial court failed to
include a Hampton charge, but included a general credibility
charge. 268 N.J. Super. at 563-64. On appeal, the Appellate
Division compared the trial court's charge with the model jury
charges. Id. at 564. The Appellate Division concluded that
there was no plain error, noting:
The trial judge clearly and repeatedly instructed the
jury it was to consider credibility of all of the
testimony which included the testimony as to
defendant's statement. The trial court's omission of
the Hampton instruction in this instance was therefore,
not clearly capable of producing an unjust result.
in which a defendant's statements are critical to the State's case, specific Hampton and Kociolek instruction should be given. An appropriate instruction is included in the Model Jury Charges.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, POLLOCK, O'HERN
and COLEMAN join in JUSTICE GARIBALDI'S opinion. JUSTICE STEIN
filed a separate dissenting opinion.
SUPREME COURT OF NEW JERSEY
A-8/
79 September Term 1996
STATE OF NEW JERSEY,
Plaintiff-Respondent
and Cross-Appellant,
v.
REGINALD JORDAN,
Defendant-Appellant
and Cross-Respondent.
STEIN, J., dissenting
Based on this record, I conclude that the trial court's
omission of the instructions dictated by State v. Hampton,
61 N.J. 250, 271-72 (1972) and State v. Kociolek,
23 N.J. 400, 421-22 (1957) constituted plain error and deprived defendant of a
fair trial. I would reverse defendant's convictions and remand
for a new trial substantially for the reasons set forth in the
dissent below.
285 N.J. Super. 589, 600-06 (1995) (Pressler, J.,
dissenting).
NO. A-8/79 SEPTEMBER TERM 1996
ON APPEAL FROM Appellate Division, Superior Court
STATE OF NEW JERSEY,
Plaintiff-Respondent
and Cross-Appellant,
v.
REGINALD JORDAN,
Defendant-Appellant
and Cross-Respondent.
DECIDED February 6, 1997
Chief Justice Poritz PRESIDING
OPINION BY Justice Garibaldi
CONCURRING OPINION BY
DISSENTING OPINION BY Justice Stein
Footnote: 1The Model Jury Charge (revised January 29, 1996) contains a