State v. Aviles
| Decision Date | 24 April 1967 |
| Docket Number | No. A--100,A--100 |
| Citation | 229 A.2d 514,49 N.J. 192 |
| Parties | STATE of New Jersey, Plaintiff-Respondent, v. Esteban Duque AVILES, Defendant-Appellant. |
| Court | New Jersey Supreme Court |
Robert W. Criscuolo, Mount Holly, for appellant.
Martin J. Queenan, Pros. of Burlington County, for respondent.
The opinion of the court was delivered
This an appeal by defendant from a verdict of guilty of murder in the second degree. He had previously been tried and a similar verdict had been rendered by the jury. We followed the ruling in Griffin v. State of California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), and reversed his first conviction on the ground that the trial court erred in charging the jury that defendant's failure to take the stand justified an inference that defendant could not deny some of the evidence presented by the State. 45 N.J. 152, 211 A.2d 796 (1965).
At his second trial, defendant did not request a charge with respect to his failure to testify, and none was given. Defendant, through his appellate attorney, claims plain error, stating that the trial judge should have charged, even without any request by defendant, that no adverse inference could be drawn from defendant's failure to testify. We find no constitutional or other basis for defendant's contention nor do we find any basis for applying the plain error rule. R.R. 1:5--1(a).
Defendant's second ground for reversal is that the jury's verdict, insofar as it was based upon a finding that defendant was same when he committed the crime, was against the weight of the evidence. A jury's verdict will not be set aside 'as against the weight of the evidence unless it clearly and convincingly appears that the verdict was the result of mistake, partiality, prejudice or passion.' R.R. 1:5--1(a). We cannot find any basis for disturbing the jury's finding.
Affirmed.
For affirmance: Chief Justice WEINTRAUB and Justices JACOBS, FRANCIS, PROCTOR, HALL, SCHETTINO and HANEMAN--7.
For reversal: None.
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...view. State v. Osborne, 258 Iowa 390, 139 N.W.2d 177, 179 (Sup.Ct.1965). In our State the Supreme Court has held in State v. Aviles, 49 N.J. 192, 229 A.2d 514 (1967), that when defendant did not request such a charge it was not plain error for the trial court not to give it, Sua sponte. How......
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...a claim that it was 'plain error' not to instruct a jury, on the court's own motion, that no inference may be drawn. State v. Aviles, 49 N.J. 192, 229 A.2d 514 (1967). In the present case, counsel for defendant seemingly holds another view of jury psychology, although he does not urge it wa......