State v. Kimbrough

• Decision Date: 17 February 1970
• Citation: 109 N.J.Super. 57,262 A.2d 232
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Roger KIMBROUGH and James Wade, Defendants-Appellants.
• Court: New Jersey Superior Court — Appellate Division

Page 57

109 N.J.Super. 57

262 A.2d 232

STATE of New Jersey, Plaintiff-Respondent, v. Roger KIMBROUGH and James Wade, Defendants-Appellants.

Superior Court of New Jersey Appellate Division.

Argued Oct. 6, 1969.

Decided Feb. 17, 1970.

Richard Newman, Deputy Public Defender, for appellants (Sranley C. Van Ness, Public Defender, attorney).

David S. Baime, Asst. Prosecutor, for respondent (Joseph P. Lordi, County Prosecutor, attorney).

Before Judges CONFORD, COLLESTER and KOLOVSKY.

The opinion of the court was delivered by

COLLESTER, J.A.D.

Defendants appeal from convictions following a jury trial on an indictment charging them with knowingly receiving a stolen automobile contrary to N.J.S.A. 2A:139--1. The indictment and trial of defendants was prior to State v. Bott, 53 N.J. 391, 251 A.2d 115 (1969), which held that a charge of receiving a stolen motor vehicle should be prosecuted for violation of N.J.S.A. 2A:139--3, a statute which does not include the evidentiary rule (set forth in N.J.S.A. 2A:139--1) relating to the inferences of guilty knowledge to be drawn from possession of a stolen article within a year after the theft. While the indictment under N.J.S.A. 2A:139--1 was technically objectionable, it is not a ground for reversal. Ibid., at 402--403, 251 A.2d 115. However, since the case was prosecuted under N.J.S.A. 2A:139--1 we are considering it on that basis.

The State's evidence, in brief, was that shortly after midnight of July 11, 1967 police officers observed a stolen car heading east on South Orange Avenue in Newark. Two police cars took up pursuit. The car stopped on South 11th Street and as one of the officers left his patrol car and approached on foot it sped away. The second patrol car followed and the fleeing vehicle stopped when it struck a curb trying to negotiate a turn at South 12th Street. Officer Minovich said he saw two men run from the car. A short time later the defendants were found hiding in the cellar of a nearby house. Officer Colalillo, who had approached the car on foot at South 11th Street, identified defendants at the trial as the two men he saw in the car. He said Wade was the driver and Kimbrough was a passenger.

Defendants denied the crime charged. They testified they were passengers in the car which was driven by a man named Glenn and that they had no knowledge the car had been stolen until Glenn so advised them while the car was being pursued by the police. Kimbrough said he met Glenn at the Park Lounge bar earlier in the evening and became a passenger in the car when Glenn offered to drive him to South Orange. Wade testified he met Kimbrough and Glenn outside the Park Lounge and entered the car when Glenn agreed to drive him to the Glitter Club, another Newark bar. Both defendants said they ran away after the car struck the curb because they were afraid they would be charged with stealing it.

They testified that after their arrest they told the police that Glenn was the driver. This was denied by the police, who said Wade told them Kimbrough was driving the car.

I

Defendants contend the trial court erred when it refused to instruct the jury as to the meaning of the word 'possession,' within contemplation of N.J.S.A. 2A:139--1, necessary to give rise to the inference of guilty knowledge provided for in the statute, particularly since it is undisputed that a driver-passenger relationship was involved. Their defense was that they were merely passengers in a stolen car driven and possessed by Glenn, while the State contended there was no third party in the car but that Wade was the driver and Kimbrough the sole passenger. They argue that under either version of the facts the court erred when it refused to definitively instruct the jury as to the meaning of possession within contemplation of the statute or to inform the jury that there is a distinction regarding what constitutes possession as between the driver of an automobile and a mere passenger.

The State concedes that the court did not expressly define the term 'possession' necessary to trigger the statutory inference of guilty knowledge. However, it argues that the charge adequately apprised the jury of the applicable law, particularly since the court charged the jury that if it believed the explanation given by defendants was reasonable, they were to be acquitted.

In charging the jury the trial judge read N.J.S.A. 2A:139--1 in its entirety. In doing so he advised the jury that proof of possession of a stolen motor vehicle within a year from the date of the theft was sufficient evidence to authorize conviction of the defendants unless they proved to the jury's satisfaction that their possession arose under one of the five examples of innocent acquisition described in the statute and that 'the statute does not preclude a defendant from presenting other defenses or explanations as to his or their possession of the alleged stolen property.' He also told the jury that 'the statute creates a permissive presumption of guilty knowledge on the part of the defendant from the mere possession of the stolen goods within the specified period.'

The crime of receiving stolen property under N.J.S.A. 2A:139--1 requires proof of three things to establish guilt: (1) the property was stolen, (2) the accused received it, and (3) at the time he received it, he knew it was stolen. 'Receiving' envisages Possession or control as an essential element. State v. Bozeyowski, 77 N.J.Super. 49, 57, 185 A.2d 393 (App.Div.1962), cert. den., 374 U.S. 851, 83 S.Ct. 1916, 10 L.Ed.2d 1071 (1963). Possession signifies intentional control and dominion. Actual physical possession is not a requisite of receiving--it may be constructive. Ibid. One has possession as soon as he intentionally obtains a measure of control or dominion over the custody of the stolen property even though physical possession is in another. If proof of possession of stolen property within one year from the date of the theft is established the jury is permitted to infer that the accused had guilty knowledge that the property was stolen--the third essential element of the crime. Cf. N.J.S.A. 2A:139--1 with respect to prosecution under N.J.S.A. 2A:139--3; State v. Bott, Supra, 53 N.J. at 400--401, 251 A.2d 115.

In State v. Serrano, 53 N.J. 356, 251 A.2d 97 (1969), defendant and Rafael Cesaro were charged by indictment under N.J.S.A. 2A:139--1 with unlawfully receiving a stolen car knowing it to have been stolen. Both were convicted and Serrano appealed. The court held that evidence that Serrano was a mere passenger in the stolen vehicle was not sufficient to show possession of the car or to support the inference that he had received it knowing it had been stolen, and that Serrano's motion for acquittal should have been granted. The court also commented on the inadequacy of the charge to the jury, stating:

(T)here was no discussion of what constituted possession of the car, no reference to whether under the evidence the jury could find possession in anyone other than the driver, and no instruction that they should acquit Serrano if they found his status in the car was Only that of a passenger who was picked up by the driver Cesareo at the intersection described in the testimony. In effect, the court advised the jury that they could find that Serrano was in possession of the stolen vehicle within the contemplation of the statute simply because he was riding in it as a passenger. (at 359, 251 A.2d at 98)

We are satisfied that the charge in the instant case suffers from a like inadequacy and that the court erred in refusing to instruct the jury regarding the meaning of possession necessary to permit the statutory inference of guilty knowledge. The fact that the court told the jury it could acquit defendants if it believed their story was not sufficient to overcome the deficiency of the charge. Defendants were entitled to have the court enlighten the jury as to the distinction between a passenger and the driver of the car with respect to the meaning of possession necessary to permit the jury to infer guilty knowledge. Failure of the court to do so could result in the conviction of an innocent passenger. In fact, a reading of the charge indicates that the jury could assume therefrom that defendants were in possession of the car within contemplation of the statute merely because they were passengers, thereby removing from the State the burden of proving possession. The court's refusal to charge the jury as requested was prejudicial and requires a reversal.

II

Because this case must be retried we deem it appropriate to dispose of the other point claimed by defendants to be reversible error since it might recur on the retrial.

As stated above, both defendants testified in their own defense and said that Glenn drove the car in which they were passengers without knowledge on their part that it had been stolen. On cross-examination they said that when questioned by the police following their arrests they told the same story. They denied Wade told the police, in Kimbrough's presence, that Kimbrough was the driver, and denied that they had not told the police that Glenn was. In rebuttal, Officer Minovich, over objection, testified that defendants never said that there was a third person named Glenn who had driven the car, but that Wade, in Kimbrough's presence, said Kimbrough was the driver. The trial court, in overruling the objection, held that the rebuttal testimony was admissible to affect their credibility as witnesses.

Defendants contend that the court erred in permitting the State to present rebuttal testimony of a statement previously given by Wade to the police without first determining whether he had been informed of his rights guaranteed by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), before making the statement. They argue here, as they did below, that a statement made without the cautionary...