State v. Wooten

• Citation: 374 A.2d 1204,73 N.J. 317
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Thomas WOOTEN, Defendant-Appellant.
• Decision Date: 01 June 1977
• Court: United States State Supreme Court (New Jersey)

Page 317

73 N.J. 317

374 A.2d 1204

STATE of New Jersey, Plaintiff-Respondent, v. Thomas WOOTEN, Defendant-Appellant.

Supreme Court of New Jersey.

Argued Sept. 13, 1976.

Reargued Dec. 9, 1976.

Decided June 1, 1977.

Arnold Mellk, Deputy Public Defender, and David R. Arrajj, Asst. Deputy Public Defender, for defendant-appellant (Stanley C. Van Ness, Public Defender, attorney; Arnold Mellk, Deputy Public Defender, of counsel; David R. Arrajj and Ezra D. Rosenberg, Asst. Deputy Public Defenders, on the brief).

Steven M. Ingis, Deputy Atty. Gen., for plaintiff-respondent (William F. Hyland, Atty. Gen., attorney; David S. Baime and Barbara Ann Villano, Deputy Attys. Gen., of counsel and on the brief).

PER CURIAM.

The Court being equally divided, the judgment of the Appellate Division, 135 N.J.Super. 6, 342 A.2d 549, is affirmed.

For affirmance: Chief Justice HUGHES and Justices SULLIVAN and SCHREIBER--3.

For reversal: Justices MOUNTAIN and PASHMAN and Judge CONFORD--3.

PASHMAN, J., dissenting.

Defendant Thomas Wooten was one of 41 inmates indicted for various offenses which were committed during the 1971 Rahway State Prison riot. That disturbance began on the evening of November 24, 1971 with a violent assault on the prison superintendent, U. Samuel Vukcevich, by a group of inmates. Vukcevich was attacked in the prison auditorium as he was attempting to calm an unruly crowd of inmates who were shouting and chanting about local grievances. In the course of the attack, he was stabbed several times and slashed with a razor. He was then taken from the auditorium with three other correction officers and forcibly confined in a cell for the next 24 hours while the prisoners and outside officials negotiated over their release.

At about the same time, another correction officer, John Monteyunas, was attacked by an inmate on the top floor of 'Four Wing', which is a separate section of the prison facility. The inmate struck Monteyunas on the head and took his keys. Another prisoner assisted the officer by supplying him with a prisoner's uniform and hiding him in a cell on the top floor of 'Four Wing', which was under inmate control by that point. He remained there for about 45 minutes until a third inmate discovered his presence and reported it to defendant. With the help of several other prisoners, defendant took Monteyunas from the cell and dragged him from the top floor of 'Four Wing' down two floors to Cell 25 where the other hostages were being held. One hostage was released on November 25 as part of a bargain with negotiating officials; the others were unilaterally released shortly thereafter by their inmate guards.

Defendant was indicted on four counts of aiding and abetting the kidnapping and four counts of aiding and abetting the false imprisonment of these officials. ¹ Charges concerning the abduction of officer Benjamin Henderson were dismissed on the State's motion at the close of its case. Those stemming from the seizure of Vukcevich and and a third officer initially seized in the auditorium, Alphonse Iorio, resulted in a jury verdict of guilty on the false imprisonment charge and an acquittal on the kidnapping charge. As to Monteyunas, however, the jury found defendant guilty of both kidnapping and false imprisonment. The trial court set aside the conviction of false imprisonment, ruling that it merged with kidnapping. He sentenced defendant to a term of 30 31 years on the kidnapping count² (the minimum sentence being 30 years under N.J.S.A. 2A:118--1), and to two-to-three year sentences on the four other counts, all to be served concurrently with the sentence defendant was then serving in State Prison.

Defendant has attacked the indictment and conviction for kidnapping on various grounds. Prior to trial he unsuccessfully moved to dismiss the false imprisonment and kidnapping counts on the ground that the relevant statutes, N.J.S.A. 2A:85--1 and N.J.S.A. 2A:118--1 respectively, were facially unconstitutional. The trial judge also denied two post-trial motions for a judgment of acquittal on the kidnapping charge and for a new trial. He rejected defendant's argument that movement of a victim within a single building did not constitute sufficient asportation for the purposes of N.J.S.A. 2A:118--1, relying instead on the increased risk of danger in moving Officer Monteyunas down two floors to a different cell. He also found sufficient evidence to support the jury's finding that defendant had dragged Monteyunas from one cell to the other.

The Appellate Division affirmed defendant's conviction. 135 N.J.Super. 6, 342 A.2d 549 (App.Div.1975). Judge Kolovsky, in an opinion adopted today by three members of our equally divided Court, agreed with the trial court's holding that the movement of Monteyunas from the eighth tier of 'Four Wing' to a lower tier two floors below constituted asportation within the meaning of the statute. Stressing the distance of the removal (some 700 feet), he concluded that defendant's argument 'lacks a shadow of substance.' Id. at 11, 342 A.2d 549. The Appellate Division also refuted defendant's contention that the asportation was incidental to an underlying crime of assault and battery or false imprisonment. It identified the underlying crime as 'kidnapping--an aggravated species of false imprisonment--a crime whose purpose was the taking and holding of a hostage.' Id. In such cases, it said, any movement, no matter how slight, is enough to satisfy the element of asportation. Id. at 12, 342 A.2d 549.

We granted certification, 69 N.J. 80, 351 A.2d 8 (1975), and permitted defendant to submit a supplemental brief raising additional arguments for reversal of his kidnapping conviction, the most substantial of which is that the mandatory minimum penalty of N.J.S.A. 2A:118--1 violates constitutional guarantees against cruel and unusual punishment. U.S.Const., Amend. VIII, XIV; N.J.Const. (1947), Art. I, § 12. ³

At oral argument, however, it was suggested to counsel that the statutory language requiring movement of a victim from on place 'to any other point within this state' might not encompass movement within a single building. At the Court's request, therefore, supplemental briefs were submitted and oral argument held on the significance of the statutory language dealing with asportation as an element in a kidnapping offense.

At issue is the interpretation of the following underscored language in the kidnapping statute, N.J.S.A. 2A:118--1:

Any person who kidnaps or steals or forcibly takes away a man, woman or child, and sends or carries, or with intent to send or carry, Such man, woman or child to any other point within this state, or into another state, territory or country, forces, persuades or entices a child within the age of 14 years to leave its father, mother or guardian, or other person intrusted with its care, and secretes or conceals the child, or who procures any such act to be done, is guilty of a high misdemeanor, and shall be punished by imprisonment for life, or for such other term of not less than 30 years as the court deems proper.

There is no serious dispute concerning the sufficiency of the State's evidence to establish an unlawful seizure, or 'taking away,' of Officer Monteyunas by defendant. Nor is there any reason to question the jury's finding that defendant personally dragged Monteyunas some 600 to 800 feet, exposing him to kicks and blows from other inmates. ⁴ Moreover, the evidence indicates that defendant was a leading force in the uprising and in the subsequent negotiations, directing other inmates and exerting considerable influence over events. ⁵

The principal issue is whether, by moving the guard from the cell in which he was found to the other cell in 'Four Wing,' defendant took him 'to any other point within this state * * *', within the meaning of N.J.S.A. 2A:118--1. As shall be discussed, this language is the final residue of the common law crime which defined kidnapping in terms of a removal of a forcibly seized victim out of the country. Although legislative modifications have largely undercut the common law emphasis on substantial asportation, the statutory language guage and the historical background, taken together, suggest that the word 'point' is used in a geographical sense, comparable to locality, area, municipality or the like. Admittedly, it would be difficult to frame a formula by which to determine the minimum distance satisfying the statute, but there is no difficulty in concluding that removal from one place in a building to another place in the same building, is not within the fair intent of the statutory requirement that asportation be to another 'point within this state.' This is so whether the building is a private home or a separate unit of a prison facility, as here. Since defendant's movement of Monteyunas occurred within the confines of the prison, I would find that his conduct did not constitute kidnapping under N.J.S.A. 2A:118--1.

This interpretation of the statute is supported by its evolution from the common law crime of kidnapping. At common law, kidnapping consisted of an unlawful detention of a person (corresponding to the crime of false imprisonment), and the asportation of that person out of his country. 4 Blackstone, Commentaries on the Law of England 219 (19 ed. 1850). The extreme requirement of asportation out of the victim's country distinguished kidnapping from the crime of false imprisonment; indeed, kidnapping has often been described as 'an aggravated form of false imprisonment.' 1 Schlosser, Criminal Laws of New Jersey § 46.5 (3 ed. 1970); Perkins, Criminal Law 176 (2 ed. 1969); 2 Burdick, Law of Crime § 383 (1946); 2 Bishop on Criminal Law § 750 (9 ed. 1923). See also State v. Gibbs, 79 N.J.Super. 315, 323--324, 191 A.2d 495 (App.Div.1963); State v. Johnson, 67 N.J.Super. 414, 420, 170 A.2d 830 (App.Div.1961); Midgett v. State, 216 Md. 26, 139 A.2d 209, 215 (1958); State v. Croatt, 227 Minn....