State v. Jenkins
| Decision Date | 21 March 1997 |
| Citation | 299 N.J.Super. 61,690 A.2d 643 |
| Parties | STATE of New Jersey, Plaintiff-Respondent, v. Manuel JENKINS, Defendant-Appellant. |
| Court | New Jersey Superior Court — Appellate Division |
Jacqueline E. Turner, Assistant Deputy Public Defender, for Defendant-Appellant (Susan L. Reisner, Public Defender, attorney; Ms. Turner, of counsel and on the letter brief).
Steven J. Kaflowitz, Acting Assistant County Prosecutor, for Plaintiff-Respondent (Edward M. Neafsey, Acting Union County Prosecutor, attorney; Mr. Kaflowitz, of counsel and on the letter brief).
Before Judges MICHELS and MUIR, Jr.
The opinion of the court was delivered by
MICHELS, P.J.A.D.
Tried by a jury, defendant Manuel Jenkins was convicted of attempted burglary, a crime of the third degree, in violation of N.J.S.A. 2C:5-1 and N.J.S.A. 2C:18-2. The trial court, based on the proofs before the jury, then convicted defendant of a related offense of possessing burglary tools, a disorderly persons offense, in violation of N.J.S.A. 2C:5-5. The trial court committed defendant to the custody of the Commissioner of the Department of Corrections (Commissioner) for five years with a two-year period of parole ineligibility, assessed a $50 Violent Crimes Compensation Board (VCCB) penalty and a $75 Safe Neighborhood Services Fund (SNSF) assessment for the attempted burglary conviction. In addition, the trial court committed defendant to the custody of the Commissioner for a concurrent term of six months and assessed a $50 VCCB penalty and a $75 SNSF assessment for the possession of burglary tools conviction. Defendant appealed.
According to the State's proofs, at approximately 12:30 a.m. on August 26, 1994, Nuno Domingos, the owner of the Red Parrot Restaurant located on Broad Street in Elizabeth, New Jersey, was closing his establishment for the night. As he was turning off the lights in the upper level of the restaurant, Mr. Domingos heard a barmaid call to him from the downstairs area. Mr. Domingos went downstairs to investigate noise coming from the back kitchen door. The kitchen door from which the noise was emanating opens into a fenced-in, patio-like "beer garden" in the back of the restaurant used for dining, barbecues, parties, and other similar events. Mr. Domingos testified that he heard "a loud noise" coming from the door which sounded "like somebody hitting the door." He believed somebody was trying to break into the restaurant and immediately dialed "911." Mr. Domingos, who was afraid, then ran out of the front door of the restaurant and waited on Broad Street for the police to arrive.
Elizabeth police officers Alexandria Araujo and Jorge Hildalgo soon arrived and saw Mr. Domingos waving at them. Mr. Domingos then led the officers through the restaurant to the back kitchen door. As they opened the door, the officers saw a man, later identified as defendant, standing in the beer garden. Officer Araujo testified that when she entered the beer garden shouting "Police!", she noticed defendant raise his hands in the air and heard something fall to ground. Officer Araujo said that the something turned out to be a hammer. Officer Hidalgo also testified that when he entered the beer garden, he saw a hammer in defendant's hand, which defendant dropped when he put his hands up. The officers then placed defendant under arrest. While checking the area, the officers found pry marks on the side of the kitchen door facing the beer garden. The pry marks were fresh, as evidenced by the exposed wood on the door.
Defendant, on the other hand, denied that he had used the hammer in an attempt to pry open the door, and denied that he had intended to break into the restaurant to steal money or liquor. He testified that on the night in question, he had been in another bar, and when he left that tavern, an unidentified man followed and then chased him. At some point, he ran from the man, who was a half block behind, and entered the beer garden area of the Red Parrot Restaurant. To enter the beer garden, defendant scaled a six foot, barbed wire fence. When he reached the beer garden, defendant began banging on the back door with his hand to get help but was not heard. Defendant then found the hammer and began using it to bang on the door to get attention. Defendant testified that he "was in fear of [his] life," and stated that eventually the person who was chasing him also scaled the fence and entered the beer garden. Defendant noted, however, that when the police arrived, the other man fled.
At the conclusion of the proofs, the jury found defendant guilty of attempted burglary. The trial court then found defendant guilty of possession of burglary tools. Defendant appealed.
Defendant, for the first time on appeal, contends that the prosecutor's comments during summation on his (defendant's) post-arrest silence violated his Fifth Amendment rights as well as his rights under State common law, thus requiring a reversal of his convictions and a new trial. We disagree.
On direct examination, defendant, in response to his counsel's questions, testified as follows:
....
Defendant's counsel also asked the following questions of Detective Kevin O'Leary, the Elizabeth police officer who conducted the follow-up investigation of the incident:
Defendant's counsel in summation made the following remarks:
[A] review of the evidence from the police officers and the detectives indicate that Mr. Jenkins was never allowed to provide an explanation as to why he was there at the scene. He was never asked by the police officers and he was never given an opportunity to provide a statement to the detective O'Leary at a future date.
The prosecutor then made the following comments in summation:
Do you think it's odd that a person who is arrested in the back dark secluded closed premises of a restaurant with a hammer in his hand eight months ago and the only reason he's there is because he is afraid, he's been chased, there's someone stalking him and startled all 200 pounds of him, all six feet of him. He ... never once talks to the Prosecutor's Office. He never once tries to explain until he's here in front of you. I don't believe it.
[Emphasis added.]
In State v. Deatore, 70 N.J. 100, 109, 358 A.2d 163 (1976), our Supreme Court announced that the State's cross-examination of a defendant concerning his/her post-arrest silence was improper. The Deatore Court explained that "[w]e reach that conclusion as a matter of state law and policy, as to which we may impose standards more strict than required by the federal Constitution, which standards will control regardless of the final outcome of the question in the federal sphere." Id. at 112, 358 A.2d 163 (citation omitted). The Court based its decision on principles of evidence law and on the privilege against self-incrimination derived from New Jersey's common law. Id. at 113, 358 A.2d 163. With respect to the privilege against self-incrimination, the Court said the following:
There can be no doubt that the right of an accused or a suspect to remain silent when in police custody or under interrogation has always been a fundamental aspect of the privilege in this state....
The practical effect of the privilege to remain silent is, as we held a decade ago, "that when a defendant expressly refused to answer, no inference can be drawn against him under the doctrine of acquiescence by silence or any other concept," State v. Ripa, supra, 45 N.J. at 204, 212 A.2d 22, and no comment thereon may be made to the jury, State v. Lanzo, 44 N.J. 560, 563, 210 A.2d 613 (1965), following Griffin v. California, supra [, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965)]. This being so, it should certainly follow that a defendant is under no obligation to volunteer to the authorities at the first opportunity the exculpatory story he later tells at his trial and cannot be penalized directly or indirectly if he does not....
[Id. at 114-15, 358 A.2d 163.]
The Court in Deatore also noted that its holding applied to a defendant whether or not that defendant had received his/her Miranda warnings. Id. at 117 n. 10, 358 A.2d 163.
Later in 1976, the United States Supreme Court in Doyle v. Ohio, 426 U.S. 610, 619, 96 S.Ct. 2240, 2245, 49 L.Ed.2d 91, 98 (1976), held that "the use for impeachment purposes of [a defendant's] silence, at the time of arrest and after receiving Miranda warnings, violate[s] the Due Process Clause of the Fourteenth Amendment." The United States Supreme Court stated:
Despite the importance of cross-examination, we have concluded that the Miranda decision compels rejection of the State's position. The warnings mandated by that case, as a prophylactic means of safeguarding Fifth Amendment rights require that a person taken into custody be advised immediately that he has the right to remain silent, that anything he says may be used against him, and that ...
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