State v. Corby

• Decision Date: 20 October 1958
• Docket Number: No. A--7,A--7
• Citation: 145 A.2d 289,28 N.J. 106
• Parties: The STATE of New Jersey, Plaintiff-Respondent, v. Roy Allen CORBY, Defendant-Appellant.
• Court: New Jersey Supreme Court

Page 106

28 N.J. 106

145 A.2d 289

The STATE of New Jersey, Plaintiff-Respondent, v. Roy Allen CORBY, Defendant-Appellant.

No. A--7.

Supreme Court of New Jersey.

Argued Sept. 9, 1958.

Decided Oct. 20, 1958.

Jack B. Kirsten, Newark, argued the cause for appellant (Joseph M. Schoenberg, Jersey City, attorney).

Sol Schulman, Asst. Prosecutor, Jersey City, argued the cause for respondent (Lawrence A. Whipple, Hudson County Prosecutor, Jersey City; Frank J. V. Gimino, Jersey City, on the brief).

The opinion of the court was delivered by

FRANCIS, J.

Defendant was convicted of armed robbery in the County Court. Upon affirmance of the conviction in the Appellate Division (47 N.J.Super. 493, 136 A.2d 271), we granted certification.

Only one reason for reversal is now urged, namely, that the trial court erred in charging the jury with respect to the defendant's failure to testify in his own behalf, as follows:

'Now, this defendant did not take the stand in his own defense. When the State's case rested, the defense rested. The defendant had a perfect right under the constitutional law of our state to testify in his defense, but he chose not to do so. And there is a principle of law that is applicable to a situation of that kind which I will read to you. It is as follows:

"When facts concerning the acts of the accused are testified to, which prove or tend to prove his guilt, and he, by his oath can deny them, his failure to testify Raises a strong presumption that he cannot truthfully deny those facts." (Emphasis added.)

It must be noted at the outset that no objection was interposed to this instruction at the trial. Consequently no basis for appellate review exists unless the challenged language qualifies as plain error, R.R. 1:5--1(a), which is legal impropriety affecting the substantial rights of the defendant and 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. Haines, 18 N.J. 550, 565, 115 A.2d 24 (1955); State v. Picciotti, 12 N.J. 205, 211, 96 A.2d 406 (1953).

Examination of the record reveals that ample evidence was adduced by the State to implicate Corby in the robbery and to justify his conviction. No present suggestion is made that the verdict of guilt is contrary to the weight of the evidence. It was raised in the Appellate Division and disposed of adversely. Abandonment of the ground in this court obviously represents recognition of the reality of the situation. Moreover, trial counsel heard the full text of the charge which by specific discussion of the implicatory facts and by fair comment as to the limitations upon their probative force apparently satisfied him that the jury would not be unduly influenced by the reference to the defendant's failure to take the witness stand. The withholding of objection or request for further explanation or qualification adequately points to that conclusion. And so, without detailing the factual sum of the proofs, it is sufficient to say that we find no such manifest injustice as would warrant a declaration that the criticized charge constitutes plain error. Cf. State v. O'Leary, 25 N.J. 104, 135 A.2d 321 (1957).

However, since the question engendered by the trial court's charge is before us, it seems worthwhile to reappraise the principle of law applicable to the failure of a defendant in a criminal action to testify in his own behalf. In substance, the jury here was told that the failure 'raises a strong presumption that he cannot truthfully deny' the inculpatory facts testified to against him. A fresh consideration of that rule may be posited on an acceptance of the premise that in the past our appellate courts, in speaking of 'presumption' in this context, understood and intended it to signify 'inference' and so used the words interchangeably. Then the endeavor would be to seek a mode of expression which will fit more compatibly for purposes of jury comprehension within the framework of fundamental principles controlling the trial of criminal causes. Establishment of an overall harmonious pattern of instructions, capable of easy explanation to, and understanding by, a jury of laymen, is a goal of the first order in the pursuit of justice through the mechanism of the modern trial.

There is no doubt that support can be found in the cases tracing back to Parker v. State, 61 N.J.L. 308, 39 A. 651 (Sup.Ct.1898), affirmed 62 N.J.L. 801, 45 A. 1092 (E. & A. 1899), for the form of charge given by the trial court. Almost the precise wordage was sanctioned in State v. O'Leary, supra, 25 N.J. at page 110, 135 A.2d at page 325, although questioned in the concurring opinion of the Chief Justice at page 116 of 25 N.J., at page 328 of 135 A.2d; in State v. Wise, 19 N.J. 59, 100, 115 A.2d 62 (1955), and in State v. Rogers, 19 N.J. 218, 236, 116 A.2d 37 (1955). In what is generally regarded as the source case, Parker v. State, supra (61 N.J.L. 308, 39 A. 653) the Supreme Court spoke of the absence of the defendant from the witness stand in these terms:

'But when the accused is upon trial, and the evidence tends to establish facts which, if true, would be Conclusive of his guilt of the charge against him, and he can disprove them by his own oath as a witness, if the facts be not true, then his silence would justify a strong inference that he could not deny the charges.' (Emphasis added.)

That language might well be understood to make the emergence of the inference dependent upon the existence of facts which, if undenied, were conclusive of guilt. But that observation aside, it is important to note that the word 'inference,' and not 'presumption,' was used, and that the phrase respecting the existence and character of the inference, I.e., 'would justify,' was permissive and not mandatory. That is, the jury would be justified in drawing the inference in the course of their deliberation on the totality of the proofs as to guilt or innocence--not that the law imposed the inference upon them as one which they were duty bound to accept and apply.

In the ensuing years, variant declarations of the rule found their way into the reports. Sometimes they were harsher, sometimes more moderate, depending in some measure and in some instances apparently upon whether the inculpatory proof was direct or circumstantial. According to former Chief Justice Case's analysis of the cases '(o)ur appellate courts have not always been entirely clear in their expressions on the subject.' State v. Anderson, 137 N.J.L. 6, 7, 57 A.2d 665, 666 (Sup.Ct.1948). It was said that 'because a man does not go upon the stand, you are not necessarily justified in drawing an inference of guilt. But you have a right to consider the fact that he does not go upon the stand where a direct accusation is made against him' (State v. Twining, 73 N.J.L. 3, 12, 62 A. 402, 405 (Sup.Ct.1905), affirmed 73 N.J.L. 683, 64 A. 1073 (E. & A. 1906), affirmed Twining v. State of New Jersey, 211 U.S. 78, 29 S.Ct. 14, 53 L.Ed. 97 (1908); '(t)he force and effect of the failure of the defendant to deny circumstances which tend to prove guilt only by inference is necessarily much less than the effect of his failure to deny direct testimony of a guilty act' (State v. Callahan, 77 N.J.L. 685, 686, 73 A. 235 (E. & A.1909)); 'but, when it comes to his own confession of guilt produced here in open court, the fact that he has seen fit not to deny it in any way is a matter that you have a right to consider. Further than that, I will make no charge to you, but leave it to your own good judgment as to whether or not you will draw any inference from that fact' (State v. Banusik, 84 N.J.L. 640, 648, 64 A. 994, 997 (E. & A.1906)); the failure to become a witness in the face of testimony tending to incriminate 'may be taken into consideration by you along with the other testimony in the case in arriving at your verdict' (State v. Connors, 87 N.J.L. 419, 421, 94 A. 812, 813 (Sup.Ct.1915)); 'you have the right to draw inferences against him' (State v. Schilling, 95 N.J.L. 145, 154, 112 A. 400, 405 (E. & A. 1920)); 'may be considered by the jury as an inference against him' (State v. Rubenstein, 5 N.J.Misc. 387, 136 A. 597 (Sup.Ct.1927)).

In State v. Kisik, 99 N.J.L. 385, 388, 125 A. 239, 240 (E. & A. 1924), for the first time the principle was stated to be that the defendant's failure to testify in denial of implicatory facts concerning his acts 'raises a strong presumption that he cannot truthfully deny them.' A reading of Chancellor Walker's opinion shows that his statement was predicated upon Parker v. State, supra, that in the discussion of the problem he used the words 'would justify' appearing therein, that he explained the reversed of the conviction in State v. Wines, 65 N.J.L. 31, 46 A. 702 (Sup.Ct.1900), as having been caused by an instruction that the omission to testify 'created a natural and irresistible inference against him,' that in referring to 'presumption' rather than 'inference,' as in Parker, he was giving the terms the same connotation and that he did not intend, by introducing the word 'raises' into the rule, to transmute its character from that of a permissive implement in the hands of the jury to a mandate established by the law which the jury was bound to accept and apply. But the argument that the effect of the injection of 'raises,' irrespective of the intent with which it was inserted, is to set up a legal mandate and thus circumscribe the deliberations of the jury as well as the force of the presumption of innocence, is difficult to cry down.

Once in the reports, the words 'raises,' 'raised' and 'presumption' were repeated. See State v. Boccadoro, 105 N.J.L. 352, 357, 144 A. 612 (E. & A. 1929); State v. Lennon, 107 N.J.L. 94, 97, 150 A. 361 (E. & A. 1930); State v. Sgro, 108 N.J.L. 528, 532, 158 A. 491 (E. & A. 1932); State v. Lutz, 135 N.J.L. 603, 607, 52 A.2d 773 (Sup.Ct.1947); ...