State v. Jordan

Decision Date06 February 1997
Citation688 A.2d 97,147 N.J. 409
PartiesSTATE of New Jersey, Plaintiff-Respondent and Cross-Appellant, v. Reginald JORDAN, Defendant-Appellant and Cross-Respondent.
CourtNew Jersey Supreme Court

Page 409

147 N.J. 409
688 A.2d 97
STATE of New Jersey, Plaintiff-Respondent and Cross-Appellant,
v.
Reginald JORDAN, Defendant-Appellant and Cross-Respondent.
Supreme Court of New Jersey.
Argued Nov. 18, 1996.
Decided Feb. 6, 1997.

Frank J. Pugliese, Assistant Deputy Public Defender, for appellant and cross-respondent (Susan L. Reisner, Public Defender, attorney).

Page 413

Linda K. Danielson, Deputy Attorney General, for respondent and cross-appellant (Peter G. Verniero, Attorney General, 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, 61 N.J. 250, 294 A.2d 23 (1972), and State v. Kociolek, 23 N.J. 400, 129 A.2d 417 (1957), 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.

I.

Early Sunday morning, October 27, 1991, Calvin Lattany was driving to his girlfriend's house on Lawrence Street in New Brunswick. Lattany stopped on Nelson Street to speak to twelve-year old John Lambert. While Lattany and Lambert conversed, two young men walked towards them from a housing complex. The two men, Kenneth Dunlap and Joseph Thomas, approached Lattany. Lattany told them he wanted to purchase some heroin.

Thomas and Dunlap decided to rob Lattany once he took out the money for the drugs and they went to see if defendant, Reginald Jordan, had any heroin. Defendant agreed to participate and retrieved a gun. Dunlap and Thomas returned to Lattany and said they had located some heroin and that Lattany was to come with them. Lattany took some steps into the apartment complex when defendant appeared with a gun and pointed it at Lattany's head. Both Dunlap and Thomas held Lattany from behind. One of the men took the $30.00 Lattany was holding. Both Dunlap and Thomas tried to reach into Lattany's pockets to retrieve the rest of his money. Lattany resisted and the group moved him into a darker area.

Page 414

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 [688 A.2d 99] 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.

Page 415

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

Page 416

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.

[688 A.2d 100] 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, 667 A.2d 1094 (1995). The court observed that defendant did not deny that he killed Joseph Thomas. Id. at 595, 667 A.2d 1094. 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, 667 A.2d 1094.

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

Page 417

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, 667 A.2d 1094. 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, 667 A.2d 1094 (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, 667 A.2d 1094.

Defendant filed a notice of appeal as of right. R. 2:2-1(a)(2). Defendant also filed a petition for certification on other issues raised but not addressed by the dissenting opinion. We denied that petition. 143 N.J. 518, 673 A.2d 276 (1996). 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...

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