State v. Burch

• Decision Date: 07 May 1981
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Derrick A. BURCH, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 336

179 N.J.Super. 336

432 A.2d 108

STATE of New Jersey, Plaintiff-Respondent, v. Derrick A. BURCH, Defendant-Appellant.

Superior Court of New Jersey, Appellate Division.

Submitted April 6, 1981.

Decided May 7, 1981.

Stanley C. Van Ness, Public Defender, for defendant-appellant (Thomas M. Bachman, Newark, designated attorney, of counsel and on the brief).

James R. Zazzali, Atty. Gen., for plaintiff-respondent (John J. Degnan, former Atty. Gen John A. Covino, Deputy Atty. Gen., on the brief).

Before Judges BISCHOFF, MILMED and FRANCIS.

The opinion of the court was delivered by:

FRANCIS, J. A. D.

Defendant Derrick Burch was convicted after a jury trial on two charges: (1) burglary in the third degree, contrary to N.J.S.A. 2C:18-2 and (2) theft in the third degree, contrary to N.J.S.A. 2C:20-3. On the burglary charge defendant was sentenced to an extended term of five to ten years with a presumptive sentence of seven years. On the theft charge he was sentenced to a presumptive sentence of four years to run concurrently with the burglary sentence.

The following issues are raised by defendant on his appeal:

Point I The trial judge erred in denying defendant's motion for a judgment of acquittal.

Point II The trial judge's charge to the jury contained several errors requiring reversal of the judgment rendered below.

Point III The sentence imposed by the trial judge below was manifestly excessive.

We have considered the contentions raised in Points I and III and the arguments advanced in support of them in our review of the record, including the presentence report submitted on the appeal. We find the issues raised by the defendant as to these contentions to be clearly without merit. R. 2:11-3(e)(2).

In Point II, raised for the first time on appeal, defendant contends that the trial judge, in his charge to the jury, made an improper reference concerning defendant's failure to testify. In his charge the judge stated:

In considering whether possession of recently stolen property has been satisfactorily explained, you are, again, reminded that in exercise of his Constitutional Rights the defendant need not take the witness stand and testify. Possession may be satisfactorily explained through other circumstances, other evidence independent of any testimony of the defendant.

Thus, if you find that the State has proven that the defendant was in exclusive possession of the property and that the property had been recently stolen, you may find the defendant guilty in the absence of a satisfactory explanation of the evidence as to the curcumstances (sic) surrounding the possession of the property.

Defendant asserts that the charge was "clearly inconsistent" in that its "import" was that defendant "need not testify in a criminal trial; and yet must offer a satisfactory explanation of the evidence as to the circumstances surrounding the possession of stolen property since no one else could explain such possession save for the defendant." Defendant maintains that the charge, in implying that he "has the right not to say what he must say in order to overcome a presumptive inference," amounted to "nothing more than judicial hypocrisy" and contends that it "violates both the spirit and letter of the Fifth Amendment."

It is without question a long standing and well established principle that "the unexplained and exclusive possession of stolen property shortly after the theft justifies an inference that the possessor is the thief." State v. Dancyger, 29 N.J. 76, 85, 148 A.2d 155 (1959), cert. den. 360 U.S. 903, 79 S.Ct. 1286, 3 L.Ed.2d 1255 (1959). See, also, State v. Pastore, 133 N.J.Super. 168, 171, 336 A.2d 4 (App.Div.1975), aff'd 69 N.J. 292, 354 A.2d 65 (1976); State v. Thomas, 103 N.J.Super. 154, 157, 246 A.2d 746 (App.Div.1968); 1 Wharton, Criminal Evidence (13 ed.1972) § 139 at 234-235; 9 Wigmore, Evidence (3 ed.1940), § 2513 at 417, 422.

While the question has arisen "with some frequency" whether a defendant's Fifth Amendment privilege against self-incrimination is violated by a jury instruction reciting this inference, "(t)he trend indicated by recent decisions is that such an instruction does not constitute an improper comment by the court on the defendant's failure to testify, and does not violate his privilege against self-incrimination." (Footnote omitted). Annotation, "Modern status: Instruction allowing presumption or inference of guilt from possession of recently stolen property as violation of defendant's privilege against self-incrimination," 88 A.L.R.3d 1178, 1180 (1978). See, also, McCormick, Evidence, § 131 at 277 (1972); 1 Wharton, op.cit., § 150 at 268.

According to the above annotation, "(t)he most common reasoning supporting this result is that the inference of guilt may be rebutted by testimony other than that of the defendant so that the giving of the instruction does not, in any way, compel the defendant himself to testify at trial." 88 A.L.R.3d, supra, at 1180. Of course, this "other" rebuttal testimony is not limited to just the testimony of the defendant's own witnesses. Possession can also be explained by documentary evidence, People v. Whittaker, 45 Ill.2d 491, 259 N.E.2d 787, 790 (Sup.Ct.1970); by "real evidence," State v. Gray, 152 Mont. 145, 447 P.2d 475, 479 (Sup.Ct.1968), rev'd on other grounds 155 Mont. 510, 473 P.2d 532 (Sup.Ct.1970); by facts proved by the prosecution, Commonwealth v. Wilbur, 353 Mass. 376, 231 N.E.2d 919, 925 (Sup.Jud.Ct.1967), cert. den. 390 U.S. 1010, 88 S.Ct. 1260, 20 L.Ed.2d 161 (1968), or by cross-examination of the prosecution's witnesses, People v. Asey, 85 Ill.App.2d 210, 229 N.E.2d 368, 374 (App.Ct.1967). In short, the explanation for the defendant's possession "need not come from the accused's own lips, but may proceed from any evidentiary source whatever." (Footnote omitted). United States v. Johnson, 433 F.2d 1160, 1170 (D.C.Cir.1970). See, also, Model Jury Charges (Criminal), § 2.294 at 2.

However, it has also been observed that "when the defendant is the only source to explain or deny the prosecution's evidence and he remains silent, courts have required a new trial where comments relate to the failure to deny or explain." United State v. Venable, 443 F.Supp. 178, 181 (E.D.Pa.1977), aff'd 585 F.2d 71 (3 Cir.1978). New Jersey also follows this course. In State v. DiRienzo, 53 N.J. 360, 251 A.2d 99 (1969), a jury instruction to the effect that a defendant's unexplained possession of recently stolen property raises the inference that he knowingly received stolen property was held permissible as long as the record showed there was other evidence (besides that from defendant himself) which could have explained his possession of the property. However, when it is clear from the record that defendant is the only source to supply that explanation, the instruction is prejudicial and should not be given. Cf. State v. Dent, 51 N.J. 428, 241 A.2d 833 (1968).

In Dent an accomplice of defendant therein, testified on behalf of the State that defendants were at the scene of the murder when it occurred. The trial judge, in his charge to the jury regarding the credibility of this witness, stated that they, the jury, could consider the failure of any witness for defendants (who did not testify) to say that defendants were somewhere else when the crime was committed. The Supreme Court found the judge's comment to be prejudicial and held that

... If the record showed there were witnesses other than defendants themselves who had personal knowledge of defendants' whereabouts when the homicide was committed, the court's statement might pass muster. But since there was no such proof, the consequence of the charge was to direct the attention of the jury to the failure of the defendants to testify in their own behalf. Such focusing of attention was inescapably prejudicial. It invaded their absolute Fifth Amendment right to remain silent without suffering any penalty or adverse inference. Griffin v. State of California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965); Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964); State v. Lanzo, 44 N.J. 560, 563 (210 A.2d 613) (1965). In effect the jury was told that from the failure of the defendants to deny from the witness stand their presence at the scene of the crime, the inference could be drawn that defendants could not truthfully deny either it or the killing.

Unless it appears that there are witnesses other than the defendant available to contradict or deny evidence inculpating him, a comment of the type made here by the court of necessity points to the only person who could have offered the denial, i. e. the defendant himself. In such situation the potential for prejudice is so great that an appellate tribunal must regard the defendant's Fifth Amendment rights as having been subjected to unlawful trespass. (at 439-440, 241 A.2d 833)

In DiRienzo, a prosecution for receiving stolen goods, the Supreme Court found nothing wrong with the trial...