State v. Stocksdale

• Decision Date: 11 December 1975
• Citation: 138 N.J.Super. 312,350 A.2d 539
• Parties: STATE of New Jersey, Plaintiff, v. Timothy STOCKSDALE, a/k/a Timothy Stockdale, Defendant.
• Court: New Jersey Superior Court

Page 312

138 N.J.Super. 312

350 A.2d 539

STATE of New Jersey, Plaintiff, v. Timothy STOCKSDALE, a/k/a Timothy Stockdale, Defendant.

Superior Court of New Jersey Law Division.

Dec. 11, 1975.

Clifford J. Weininger and Bruce Chait, Morristown, for the State (Donald G. Collester, Jr., Prosecutor, atty., Morristown.

Timothy Stockadale, pro se.

STEIN, J.C.C., Temporarily Assigned.

Defendant moves to dismiss this two-count indictment charging him with breaking and entering with intent to kidnap (N.J.S.A. 2A:94--1) and conspiracy to kidnap (N.J.S.A. 2A:85--1 and 98--2). R. 3:10--3. ¹

The threshold question on this motion is simply stated: In the absence of an order of custody, is a person who assists a parent in obtaining exclusive possession of a child guilty of the crime of kidnapping?

The question is apparently not yet decided in New Jersey. Indeed, there are few decisions throughout the country which deal with the issue. Annotation, 'Kidnapping or other criminal offense by taking or removal of child by, or under authority of, parent, or one in loco parentis,' 77 A.L.R. 317 (1932).

Since each parent has an equal right to custody of a child in the absence of a court order, a parent does not commit the crime of kidnapping by taking exclusive possession of the child where no such order exists. Annotation, 77 A.L.R., supra at 317; 51 C.J.S. Kidnapping § 4 at 506--507.

There is a distinct split of authority as to whether an agent or other person assisting a parent to gain exclusive custody of a child can be guilty of kidnapping.

Holding the parent's agent or assistant immune from prosecution for kidnapping are People v. Nelson, 322 Mich. 262, 33 N.W.2d 786, 788 (Sup.Ct.1948); State v. Elliott, 171 La. 306, 131 So. 28 (Sup.Ct.1930); People v. Workman, 94 Misc. 374, 157 N.Y.S. 594 (Cty.Ct.1916).

The contrary view is that the immunity from prosecution is personal to the parent, and one who assists the parent is guilty of the offense. State v. Brandenburg, 232 Mo. 531, 134 S.W. 529, 530 (Sup.Ct.1911); Wilborn v. Superior Court of Humboldt County, 51 Cal.2d 828, 337 P.2d 65 (Sup.Ct.1959).

There are frequently mitigating circumstances which might rule out maintenance of a kidnapping charge against the parent's 'helper' in these unfortunate custody struggles. For example, in People v. Nelson, supra, defendant was the child's uncle (brother of the child's parent). Defendant assisted his brother in retrieving the child from the mother, who had previously taken the child from the father during a period of visitation. The Michigan Supreme Court ruled that the kidnapping statute of that jurisdiction

* * * Does not in all cases make a good faith agent of the parent liable as a felon, unless there can be said to be an independent custody on such agent's part or an unreasonable delay in transferring the child to the parent, the principal. (322 Mich. at 269, 33 N.W.2d at 788)

The facts in the present case hardly portray defendant as a prime candidate for compassion. He is no brother, sister or close friend of a distraught parent. Rather, he is a self-styled 'private investigator' or 'private detective' operating out of the State of Florida. It is clear that his actions in this case were at all times motivated by profit, rather than by altruism.

This case arose because of a marital dispute between a young Florida-based couple, the Markoskis. As a result of their difficulties Geraldine Markoski, the wife, left Florida and returned to New Jersey with the couple's 2 1/2-year-old daughter Michelle Lee. Edwin, the husband, remained in Florida.

When Geraldine came to New Jersey she and Michelle moved into the Fayson Lakes home of Geraldine's parents, Preston and Flora Fairlamb. Geraldine took a job in nearby Pompton Lakes.

While the Markoskis were still living in Florida, and afterward by telephone conversations to New Jersey, Edwin repeatedly made it clear to Geraldine that he intended to take steps to obtain custody of Michelle Lee.

The incident which gave rise to this indictment took place on January 7, 1974, some three months after Geraldine had returned with Michelle to New Jersey. While Geraldine was at work Preston Fairlamb received a telephone call at home. The caller, a stranger, advised Fairlamb that Geraldine had been involved in a 'minor auto accident.' The caller stated that Geraldine had not been hurt, but that she needed her father to pick her up at a Kinnelon service station because damage to the front wheel made it impossible to operate her automobile. An inquiry was also made by the stranger--supposedly at the request of Geraldine--as to the status of young Michelle. Fairlamb answered the caller that 'Michelle is safe and sound here with us.' He immediately left the house for Kinnelon to assist his daughter.

Of course, Geraldine had not been involved in any automobile accident, and she required no assistance from her father. The telephone call was simply a ruse to lure Fairlamb from his home.

Very soon after Fairlamb left the house defendant Stocksdale rang the doorbell of the Fairlamb residence. Flora Fairlamb answered the door. Stocksdale made some vague, confusing inquiries and statements about Geraldine's supposed auto accident. Stocksdale's delaying tactics diverted Mrs. Fairlamb just long enough for Edwin Markoski to enter the Fairlamb house through a back door. He spirited away his infant daughter and jumped into a waiting car with Stocksdale. Both men fled with young Michelle to Kennedy International Airport in Long Island, where they were apprehended just as they were about to board a plane to Florida.

The next day, by court order, temporary custody of Michelle Lee was awarded to the mother, Geraldine Markoski.

This two-count indictment followed against both Edwin Markoski and Stocksdale, charging them with breaking and entering with intent to kidnap, and conspiracy to kidnap. The indictment was dismissed against Markoski, because as the natural father of Michelle with equal right to her custody in the absence of a contrary court order, he could not be guilty of kidnapping or of a conspiracy to kidnap.

The State agrees with Stocksdale that the conspiracy count against him must fall. The position of the State is that two persons were charged with this conspiracy to kidnap; since the indictment has already been dismissed against one defendant, Markoski, so must dismissal result for this defendant, since it obviously takes more than one person to commit a conspiracy. Reference is made to State v. Collins, 120 N.J.Super. 48, 50, 293 A.2d 235 (Law Div.1972).

The State's reliance on this case may be overgenerous to defendant. In Collins defendant and two police officers were indicted as coconspirators. The two police officers were acquitted after a jury trial. Defendant's jury conviction was overturned for the simple reason that one cannot be a coconspirator with himself.

Persuasive authority exists for the proposition that little short of Acquittal of the other accused coconspirators will automatically result in acquittal of the remaining defendant charged with conspiracy. State v. Palumbo, 137 N.J.Super. 13, 19, 347 A.2d 535 (App.Div.1975); State v. Collins, supra, 120 N.J.Super. at 50, 293 A.2d 235. Here, of course, dismissal of the codefendant's indictment was not based upon any factual finding of innocence. Markoski's dismissal was apparently because of 'legal impossibility'--I.e., that he could not conspire to kidnap his own child. It is questionable as to whether the dismissal of the indictment against Markoski under these circumstances should operate to discharge this defendant from the conspiracy charge. Nevertheless, there is no reason to interfere with the State's reluctance to pursue defendant into this admittedly murky area of conspiracy law. See, E.g., State v. Moretti, 52 N.J. 182, 189, 244 A.2d 499 (1968) Cert. den., 393 U.S. 952, 89 S.Ct. 376, 21 L.Ed.2d 363 (1968). Accordingly, the conspiracy count against defendant Stocksdale will be dismissed.

This leaves for consideration the substantive count charging this defendant with breaking and entering with intent to kidnap.

There is much to compel a holding that a relative or close friend should not be guilty of kidnapping when, in good faith, he or she assists a distraught parent in one of these unfortunate custody struggles. People v. Nelson, supra. This type of situation with its own peculiar facts, must await resolution when it properly comes before the appropriate court.

This case, involving this defendant, is hardly a 'good faith' situation. Defendant's interest in this matter is purely pecuniary. He was paid by an irate father to help wrest custody from the mother and to assist the father in removing the child to a faraway jurisdiction. Public policy mandates against a finding which...