*1 in- here municipality (not at retail another to sell water light N. J. A. .all volved). 40:14B-20(6). jurisdiction it follows that has no this, certainly Board an an to consent to authority refusal of to deal aby private utility into its territory extension of service that, when the Board here learned existence it have the proceeding should terminated before Authority, Lakewood’s petition. dismissed South order Division judgment Appellate are reversed of Public Commissioners Utility of the Board Water Company South petition Lakewood Board is dismissed. and Justices For Justice reversal —Chief Weintraub . and Schettino — 5 Francis,
Jacobs, Hall For affirmance —None. PLAINTIFF-RESPONDENT, JERSEY,
STATE OF NEW HAMPTON, WADE DEFENDANT-APPELLANT. Argued April May 8, July 1972 Decided 1972. *4 25é *5 Cantor, Laura
Mrs. L. De- Public Deputy Assistant Van fender, Stanley for C. (Mr. the cause argued appellant Ness, Defender, Public on attorney, brief). Luciani, General, Mr. J. Deputy Attorney argued Alfred George F. At (Mr. Kugler, cause for respondent General,
torney attorney). Nicola, Mr. J. Di Gerard Prosecutor of Salem County, on filed brief of respondent. behalf opinion the Court was delivered by J. Defendant Hampton was convicted kid
Francis, N. J. A. 2A:118-1, S. napping, and breaking and entering N. J. S. A. larceny, 2A:94-1 and 2A:119-2, con carrying cealed N. J. S. A. weapon, 2A:51-41, atrocious assault and N. J. A. 2A:90-1 battery, and 2A:151-5, and receiving automobile, stolen N. A. J. S. 2A:139-3. The following sentences were 30-35 imposed: years for State Prison kidnapping, breaking and 3-5 entering years, 1-3 larceny both years, terms to be served concurrently with kid sentence; 1-3 for napping years carrying concealed weapon, 3-5 years atrocious assault and 3-5 battery, years for re automobile; ceiving stolen execution of these last three sentences was conviction suspended. The affirmed an Division in Appellate unreported However, opinion. the 30-35 year sentence was to 30 years modified without minimum maximum any We de specification. granted petition fendant’s certification. State v. Hampton, N. J. 263 (1971). this Court defendant’s raises appeal four contentions: that the (1) trial court erred in its charge on issue of voluntariness of con defendant’s fession, in refusing charge as requested on the sub (2) the ject; kidnapping statute violates the Amend Eighth ment ban of the Pederal Constitution against cruel un usual (3) it also punishment; violates the due process clauses of the equal protection Pourteenth Amendment, *6 a by facts the State do not warrant conviction (4) proved kidnapping. I P.M., On 10:20 20, 1968, Ray- at about Mrs. July Mary Main born, widow, a her on returned to South apartment a Street, look for Upon began Woodstown. she to entering left her note which was to have been two sons. While it, a don’t move.” doing say lady, so she heard voice “Hold a man near door hold around she saw Turning standing a walk and in his hand. She started to toward him ing gun him move, lady.” was told “Don’t She offered to again give whatever had wanted in the money anything she and else he man, would later apartment, he leave. The who turned out to her Hampton, refused he could leave saying many apartment. there there too in the telephones as were Then told her she have drive him out of he would to town. She that she nervous but would drive him very was replied a instructions .she community. Following neighboring (cid:127) door, walked with the following out the Hampton gun her back. As toward the area where proceeded parking the3r man car been left she another standing.nearby her had saw to him but the at her de yelling gun considered back At lot noticed that terred her. she parking Hampton a well the hand -This gun. was rifle” as carrying “long thoughts escape. abandonment of all caused which time car at defendant tried into her They got a standing nearby. Although was con man who summon That was person them. arrested join did not he federate, a connection with stolen car in which Hampton later was town. He not on trial into come two men had Mrs. under revolver Rayborn testify. nor did he this case . e lot In directions following the parking out of threat drov area,- not familiar with the- so was Hampton realized she an she acquaintance a had down street-where turned she followed, order to drive faster immediate An down. Slowed a direction accompanied by off the main keep roads. After a for while continuing she was instructed to stop a neared lake. Tearful of her life she said Scout Boy was camp there usually boys were camping there. There- after, defendant noticed dirt road main off the running road and ordered her turn into it. She did not turn but after immediately the road passing into gun pushed her side and she was told to Then she stop. was ordered to back into driveway She stop. nervous, very asked him if she could take because pill she had bad heart. He allowed her to so but told do her to turn off the car She did so but headlights. was so “terribly frightened” that she them back put on, whereupon he *7 to her put gun side again and told her he would not harm her if she kept them off. She smoked a cigarette, gave and Hampton one to him. kept talking
They to began drive around again and came to a they section populated largely by blacks. a (Hampton black). is Mrs. Rayborn suggested he out get there but he re fused. a After while she realized they were headed back to
ward Woodstown and told she Hampton would take him to the center town where he could have car $20, and and she would walk home. said Hampton he would think about it, but on arrival in town apparently he changed mind, his a She behind car stopped parked near a church and he “Move, said there lady, somebody that car.” She con a tinued on short distance and stopped again she was saying too nervous and to on upset and to go wanted out. She get $20 took out of her purse and too being to frightened hand him, it to she it on the placed seat at the same time trying him directions about give out of town. getting But he (cid:127)said drive out of “Lady, you me town and then I will let you She go.” thought herself that did not let he her out, she was get probably to be going anyway shot and she would rather be shot in town. there As he said to her “I am I can’t sorry lady, afford to let you go,” she undertook to door, the car and open heard the gun go off. She a felt sting area her arm on for that found reaching in her and right “I ran across yelling hand covered with blood. She the street an old shot,” admittance to finally have been and gained In a short time the away. police ladies home short distance her where she remained nearby hospital arrived took it The had entered her arm lodged bullet overnight. For medical reasons decision near the collar bone. self it there. it, remove and she still carries made Mrs. had driven Rayborn record reveals that defend- an hour was shot. for about before she ant around her a son of Mrs. drove Rayborn The following morning Hall. she Borough to Woodstown There from hospital a room off the main hallway, two seated in saw men her who forced to drive Hampton person as the identified her said seeing him and who her. On Hampton around shot hurt her.1 he did not mean to sorry he for the responsible An unusual circumstance was presence men at Hall. Borough During previous the two (ac- himself as James Ellis identifying evening person who Ellis, companion Marvin remained Hampton’s tually while re- Rayborn’s it) Mrs. he entered apartment outside owned car. The car found Woodstown was stolen ported Delaware, who had re- Harvey Vincent Wilmington, car Ellis As this was the developed it stolen. ported left at a sta- gas drove into Woodstown and Hampton for some means of looking while went getting tion *8 Later Harold Sergeant money buy gasoline. evening and at a bus Hampton saw Ellis Borough Bulford a man running had told Bulford he seen Ellis stop. look help the car and both men offered from stolen a around while touring unsuccessfully him. After again Kayborn unhesitatingly Hampton at 1 Mrs. identified Propriety identifications of both out-of-court and in-court trial. challenge challenged Appellate prop The in the Division. rejected repeated erly there, and not in this Court. See is (1972). Earle, J.N. two men asked to Salem, be driven to a nearby town. On a way there transferred to Salem car, and police requested and were permission to granted stay overnight City jail. Salem Early following morning Bulford advised the Salem Police he men wanted the for question- about ing car, the stolen around 7:00 a.m. and them brought back to Woodstown. This action was taken because shortly after an midnight examination of the stolen car by finger- print expert disclosed of both and fingerprints Hampton Ellis on it. It appears Rayborn also that after Mrs. had been her hospitalized, search of car Bulford revealed a on $20 bill the front seat and on floor a rifle belonging sons, to one her had which taken from her Hampton apartment.
At the Hall Borough fully Bulford men advised the their Miranda an rights. attorney. Neither one requested About a half hour later Mi- to waive his Hampton agreed randa statement; and to rights give and he such signed a waiver. At about this time told he was Hampton was of atrocious suspected assault and and battery, breaking entering larceny. That the waiver he contained signed Miranda complete is nor warnings questioned; waiver sufficiency form attacked said: It inadequate. my rights my I have read the statement and X understand what rights willing questions. I am are. make statement answer X lawyer do not want at this time. I understand and know what I doing. promises am No or threats have been made to me and no pressure any against or coercion of kind has been used me. between time sequence giving the warnings waiver Hampton’s of his giving statement and Rayborn’s Mrs. identification is not certain from the record. at The statement was made 10:20 a.m. and Mrs. Rayborn said at the trial her identification of Hampton took place morning. the late
Prior to statement Hampton Ellis were allowed alone. A conversation short time hold later gave Ellis
260 of which result Hampton,
a statement implicating was located. After Rayborn to shoot Mrs. the hand used gun Ellis’ and shown the which gun informed of statement being identified, the mat- then he volunteered discuss Hampton the Miranda warn- again so he was doing given ter. Before and the statement followed their ings incriminatory repeti- N. 352, 52 J. 374 cert. Magee, tion. (1968), See 891, L. Ed. 393 U. S. 2d (1969). den. Ct. Rayborn’s with Mrs. substantially The details were accord that already outlined, except describing testimony said “When she started to out get incident he shooting [of off I was I went gun trying jumped car] car.” out get the wit- Sergeant called Bulford to prosecutor When his stand, being and the court aware that parties ness statement, involve Hampton’s would testimony excused until the issue of its voluntariness was decided. on the subject was accordance testimony given Bulford’s set forth. this hear- already factual outline During with the it testified, fairly that may also said Hampton ing conflict the Miranda respect he no raised substantial waiver and his execution of the his willingness warnings, he on fact testified cross-examina- statement. to give tion: you Ellis, it And when learned of the statement was then Q you your statement, make is that not correct? started to I asked to A That when was make statement. voluntarily make this statement? You didn’t Q X asked. A I volunteered after volunteered, anybody you force Q You did make this statement? No, A didn’t. doing you times, you were all You knew what at did Q not? grounds may A I to answer on the refuse incriminate me. followed between court counsel during
Some discussion was, did make this question you the court said: “The which said, and he voluntarily yes. That is not an im- statement *10 ** court “I have Then the said: heard proper question this. I find enough to that the testimony respect statement find- necessary is admissible.” that the It is clear ing amply sup- and it was made, voluntariness was that by the ported testimony. jury
The trial of the then continued in presence the the Sergeant testimony respecting Bulford repeated his Miranda and signing the the giving waiver and warnings, of the statement The then of- Hampton. statement was fered in evidence and who objected by defense counsel to advised on the that his client was going testify not subject. court, noted, found the already having admissible, statement voluntary out of the presence and had jury, the should simply objection have overruled the the statement marked in However, evidence. probably mo- tivated by the rule which prohibits trial from ad- judge his vising jury of earlier out of their presence finding that the confession he told voluntary, jury statement was admissible and he would not decide “on voluntariness of the statement.” he said: Continuing your testimony you That is You from function. will decide you have heard and which will hear later from all the circum- brought voluntary stances that are forth or whether this is you voluntary you may give weight If find it statement. it such you you voluntary you If value as find desire. is not should dis- regard disregard ruling right and shall All I it. am on now is that statement will be admissible in evidence. After some additional corroborative testimony on vol- untariness of the statement, Hampton’s fingerprints, of the stolen rifle in Mrs. finding car, Rayborn’s State rested. The defense followed suit without calling any witnesses.
Before summation defense counsel handed the court a page six document entitled typewritten “Request Charge.” It contained 10 unnumbered a dis- paragraphs constituting on the law general state of admis- quisition respecting sibility confessions. About two were pages devoted to an elaborate definition declined of voluntariness. The court read this paper jury, at conclusion of the counsel noted charge objection defense his saying: * * * part I would ask at to read that the Court least charge I I submitted which included a definition voluntariness. part integral I feel it is crucial and essential and an of this case. voluntariness. That feel we are entitled have know the to an extent a term of art and defined for them. have it *11 The court had covered the issue of voluntari- replied that it ness and did “have the time to out sufficiently, pick it I would wish the the that particular spots request] [from to charge.” did define the court
Examination of the shows that charge and the term the fully fairly “voluntary” substantially of one of the to and also paragraph request charge, language referred to the on the of the specifically obligation part State to show that defendant’s confession was the expres- sion of his own will and the by free not induced pressure of force or fear of some or the influence of hope promise benefit. addition the discussed the that charge testimony had and Hampton been advised of his on two occasions rights that he waiver contained understandingly signed (which and a correct statement of the Miranda warnings proper have in waiver, jury form of and which the would jury and the confession. room with before them) giving signing and now in this In the Division defendant took Appellate trial de- court’s Court continues on different tack. Instead error is voluntary charged finition of is not assailed. failure charge following paragraph because of the from the fifth of the page request: defendant, you alleged regard must statement With affirmatively proven (1) that first whether the State has determine rights, (2) that of his constitutional the defendant was warned rights, (3) knowingly intelligently such and waived defendant voluntarily. any whether statement made Absent of one you findings, disregard completely these should the statement weight any part accord no evidential to it or whatsoever of it. we noted, As have the trial court instructed adequately on the voluntariness the confession in context which included references to the advice to Hampton given to his Miranda rights proof requirement his waiver understanding of those Plainly the rights. jury’s ultimate decision as to whether the confession was the product defendant’s own free will was to depend upon consideration of all of the factors mentioned. were They specifically told that “before the can be con- [confession] sidered as evidence by you you must decide whether or first not the State has shown that it Fur- given voluntarily.” ther, after have the waiver mentioning they would them, the court continued: you prove Now if find that the State has failed to the state- voluntary, you disregard ment completely then should and ac- weight cord no evidential whatsoever to its contents. On other hand, you voluntarily you find defendant, it was made may then consider it in the same manner as other evidence and doing you credibility so weight given must consider light
to the statement or confession in the of all evidence circumstances the case. *12 After the reviewing charge as whole the Appellate Division found no prejudicial error. We with that agree result for two First, reasons: defendant did not testify the main case before Thus, the jury. there was no contradic of the tion of testimony the police officers, at whom the con stitutional obligation to the give Miranda aimed, warnings that they fulfilled that duty fully Nor was completely. there any contradiction of their testimony documentary proof bearing Hampton’s signature showing free will waiver of his not to right incriminate himself. Under these circumstances, to the extent the charge permitted that the jury to test voluntariness of the confession as if there were a factual dispute as to whether the Miranda rule had been with, whether thereunder rights defendant’s
complied waived, than prejudiced. had been he was benefitted rather charge the trial court’s The second reason for sustaining far in the decisions is one which has been thus expressed not of this Court. con- May rule in this State respecting
Prior the un- competent was that since were not evidence they fessions e., voluntariness, i. less the of voluntary, admissibility, issue If a hear- alone. upon was determination court jury, of presence on that issue in or out ing defendant, the against the trial the indictment during was it voluntary, was not trial decided the confession court it however, court found If, excluded as evidence. issue and the admitted in evidence voluntary, was Their con- jury. not submitted to voluntariness was the truth sideration was limited to determination however, connection, jury the confession. In that factual any credibility light authorized to evaluate its on the testimony or in the improbability inherent dispute its subject of voluntariness. Smith, J. 501, 32 N. 557-560 (1960) (con- 936, den. 364 cert. U. S.
curring opinion),
S. Ct.
We admissibility compulsion. competency constitutional
265
due
court alone
of evidence is
for the
traditionally
Amendment
requires
of the Fourteenth
process mandate
before
a confession
on voluntariness of
only judicial ruling
it can
No
obligation
imposed
be admitted
evidence.
upon
to have a
well as the court
thereby
jury
pass
Denno,
1774,
368, 84 S. Ct.
issue. Jackson v.
378 U. S.
404
Twomey,
12 L. Ed.
908
v.
U. S.
Lego
2d
(1964);
v.
477,
619,
92
dual method seemed operate ficulties. Miranda,
With the advent complica procedural tions arose in the administration of rule. the Massachusetts aAs matter of constitutional law Miranda bars from evi dence confessions obtained by police custodial interroga tions unless before ad the accused is questioning begins vised of his (1) silent, to be he right anything (2) can be says law, used him in a he against (3) court has the right of an if presence attorney, (4) he cannot afford an one will be for him attorney appointed prior any desires, he so that he has questioning, (5) continuing opportunity any to exercise these at rights time during It was said also that questioning. “[a]fter such have been and such af warnings given, opportunity him, forded the individual may knowingly intelligently waive these answer make a rights agree questions statement. But unless and until such and waiver warnings trial, are demonstrated at evidence prosecution no obtained as result of can be used interrogation against him.” 384 16 L. Ed. 1630, U. S. at S. Ct. at 2d 726. at *14 these new when the
Obviously strictures were not foreseen Smith decision from determining turned the orthodox test for and to the re- admissibility voluntariness of confessions trial and a quirement decisions, by two first court second by jury. problem
The new created Miranda by was this: When the United States Court said that unless until Supreme and the prosecution demonstrates that were warnings given and the waiver made no evidence obtained as the result of can be used interrogation against trial, the accused at what effect was intended on the procedure established by rule for Massachusetts determination of the issue of vol- untariness of his confession and its admission in evidence? Some trial took the view that an judges additional essential step had been added the procedure. It was their opinion that advice to Miranda since rights of their proof waiver were initial constitutionally an decision had required, to be made as to whether met, such were requirements before the issue voluntariness could be reached under either the Massachusetts or orthodox rule. And it was felt that of which regardless rule if it was applied, decided the court or by alone the court then jury, first and Miranda had been with the complied as to ad- inquiry ended; the missibility confession had to be no excluded, and further If, voluntariness could in. inquiry engaged be however, the determination was that the Miranda man- made met, dates been then had then would only the second e., i. be consideration of step proper, voluntariness sense. this latter pre-Miranda connection the obvious is — a noted confession given in-custody during interrogation be may involuntary fact even if Miranda have warnings been given.
Other trial while that the judges nature conceding Miranda is such warnings issue as whether e., evidence, were i. ad- given goes competency confession, of the that the missibility suggest warnings waiver are an really of the overall integral part problem voluntariness, therefore where the rule Massachusetts is followed they are simply factual part whole complex to be submitted first to the then, court its decision on voluntariness is favorable, to similar resolution. court
This has not been called to decide upon previously whether an initial decision must independent made Miranda been has complied the pre-existing before type of issue of voluntariness of a can be confession reached. Nor have we been asked to decide whether the previously *15 rule in Smith adopted should be limited the pre-Miranda of type ease there presented and Mi- since subsequent randa doctrine relates to competency of evidence narrow constitutional terms, the orthodox rule should be call- applied for decision on ing However, court alone. subject by the Ford, the Appellate Division in State v. 111 N. 11, J. Super. 13 (1970) obviously conscious that in our State the Massa- rule now chusetts held applies, the trial court’s “'re- fusal to instruct as to jury the warnings under required Miranda if and that they found were warnings not given, disregard statement completely, [defendant’s] was error.”2 reversible
In view of Jackson v. Denno and v. Lego Twomey, there supra, is no eonstituional obligation to submit to the jury determination the issue of whether the Miranda were to a warnings given defendant and the rights described him thereby by waived before he confessed. Since the ques tion involves the competency evidence, decision thereon rests with traditionally the trial Therefore, judge. we already indicated, have under ordinary circumstances if the e-Smith pr doctrine still a applied, judge’s Mi ruling that randa had been complied would clearly have been suf ficient Jaclcson. under Further since Smith pre-dated Miranda, and did not foresee its implications, is most parts Appellate unreported opinions other 2 Two Division in approved holding. Hart, ; (1971) have this v. State A-1585-69 Arnold, (1971). A-1959-69 Miranda existed at the time of Smith we unlikely event But, would have abandoned orthodox rule. in any far admissibility concerned, so confession is adoption of Smith does not separate independent pre- foreclose litany trial courts as to whether the liminary by decision had been defendant and whether rights explained Nor he waived those does it stand understandingly rights. basic of voluntari- way holding problem that the in fact reached until whether ness should the question Miranda Assuming with has been answered. complied of a for these two court steps, recognition requirement rule, next created the Massachusetts is whether problem, by followed, also Miranda must decide whether and if find that the were and waiver they warnings given whether should then to the obtained, proceed discharge e., i. area, of their traditional in this determination as duty confession. also United credibility defendant’s See 613, States v. 430 F. 617-619 cert. Panepinto, (3 Cir.), 2d States, den. sub nom. v. United Orangio U. S. L. Ed. 258, 27 2d (1970). S. Ct.
In view of Miranda in the difficulties created applying State, the Massachusetts doctrine this it seems advisable we to it or *16 consider whether should continue adherence orthodox of be- responsibility return rule allocating A tween court and as to of confessions. jury admissibility reasonable can be made for the proposition argument a per dimensions, because of its constitutional determina- se tion of of under Miranda calls for admissibility the issue warn- by decision the trial court as to whether the solely Eor in were and the waived. ings given rights example, Miranda California where determina- prior independent tions court and had been as to the volun- by jury required of it was said does incriminatory statements, tariness “[it] as not follow that similar rule should obtain necessarily remain allow- to the to counsel and to silent before rights of an extrajudicial consideration statement. ing jury jury which must be before the necessarily placed matters 269 in such an are the same those instance not of nature as which to a are on the of voluntari presented jury question * * * Moreover, ness. which must be determination ais in complex made more one than the case of question * * Sanchez, v. Cal. 2d 814, of 65 People voluntariness 56 Cal. P. Rptr. 648, 656-657, 800, 423 2d 808-809 (1967), for cert. 394 U. S. dismissed, 1025, 1646, 89 23 pet. S. Ct. L. Pd. 70 Cal. reversed on other (1968), grounds, 2d Cal. 451 P. 2d 74 Rptr. 562, 642, 2d (1969). of
The Eederal Court for the Appeals 10th in Circuit States, Coyote United 380 F. 2d 305, cert. denied 389 U. S. Ed. L. 489, Ct. 2d 484 (1967), took the same view: determining admissibility judge in the first instance is un-
doubtedly Miranda, prerequisites bound the met, i. dictates of ife. its fully involuntary have not been is confession without more law, as a incriminating of matter hence inadmissible But an insubmissible. may statement also be inadmissible insubmissible factually freely voluntarily given, because not shown to have been though requirements met; fully even of Miranda have been may surely physically psychologically an accused be or induced to fully incriminate himself after he has been of all warned and advised rights. admitted, jury his Constitutional If the statement must, seen, as we first have determine themselves whether the freely given. voluntarily not, they statement was fact If in must wholly disregard they it. Indeed so were instructed in case. this voluntary fact, On the issue whether the statement is in admitted competent undoubtedly show, admissibility hearing, it is in as only in-custody interrogation not he that while for accused under was, example, food, promised sleep, denied drink and leniency, but also that he not forewarned and advised his rights may very explicated short, compliance in Miranda. In with Miranda voluntariness; but, well be relevant to the factual issue prerequisite. it is Miranda is concerned with in voluntariness — admissibility prescribe terms prerequisites does not undertake to jury finding ato of factual voluntariness. jury is, course, guiding judge A entitled hand of application they And, of the law to the facts find them. proper surely they case the should told that if find defendant fully meaning warning given did not understand the advice confession, may him as stated in to sideration take that into con- fact along all the other facts and circumstances de- termining the factual voluntariness F. 2d statement. 380 at *17 309-310. consideration of all
Upon aspects of the are problem, we of the that a return opinion to the orthodox rule would the simplify procedure best serve the cause of justice. a Such return would restore traditional the roles of judge e., criminal i. jury trials, the would judge decide in the of Miranda competency of satisfaction require- sense ments and the Pifth Amendment demand voluntariness of the all confession, while the after jury evaluating factual would its proof credibility. decide
This view to the fore the whether Rule brings question fairly of Rules of 8(3) may interpreted Evidence be. rule. which return to the That rule permit pre-Smith N. A. 1967, J. 3A:84A-1 became effective September et 2A:84A-36 seq., provides:
presence tlie statement statement shall evidence rules of law fendant he shall not In the disregard hear and on trial shall ease the statement admissible, pertaining inform the is hearing apply of a determine the on statement a and the burden of prosecution. criminal to such statements jury he shall jury. question that he has made a against proceeding, find If instruct of such proof its judge * [*] penal is inadmissible under admissibility a as to *. hearing admits the statement judge, interest of jury finding admissibility if the rules of out of the requested, they that are de- of the rule control Manifestly explicitly does the question us. before can have diverse connotations in “Admissibility” the law in which the context the need to depending upon define arises. confession at trial Admissibility Smith prior question evidence, competency — which in such context meant voluntariness a question of law for the court alone. And pm-Smith, finding by jury that confession was unworthy belief, would mean purposes of their discharge role the trial e., it was process, “inadmissible,” i. could not be used the defendant against and “under the rules of law pertain- to such statements” ing they would be required disregard It may it. be conceded that the comment appearing under
271 the rule was not of rule (which part the and was not adopted of as “the New expression ultimate views.” [this Court’s] Evidence, Jersey Rules Ed., a construc v.), suggests of which, tion of decision, because the Smith treat the would term “inadmissible” as to authorizing jury finding voluntariness well as of (1972 the confession. credibility Ed., supra, (Comment) at 24-25).
However, the in its wisdom Legislature approved Rule 5 which adopted says: adoption growth develop- bar these rules shall not principles
ment of the law in of evidence accordance with fundamental may fairly to the end that the truth be ascertained. This was done both the because lawmakers and the court recognized that law development of evidence is an ongoing process, and that cases would arise dealing situations not foreseen which specifically would require formal be rules construed and the same interpreted in manner as statutes are treated. Ed. at xxiii. supra, Consequently arises to consider whether necessity of the additional light problems respecting admissibility Miranda, confessions raised Rule can be reason- 8(3) ably interpreted permit return to the pr&-Smith ortho- rule. We dox believe it can and that in it justice should be be so interpreted.
Admissibility of evidence is for the court the ordinary course of trial it is admitted when proper for is laid it. If predicate predicate is but disputed the court is received, satisfied the evidence should be it an accepted jury consideration, with instruction that credible, find they it then it is admissible for consideration Thus, in making their verdict. up certainly not although a desirable method of expression, would be legally incorrect judge jury that if after con charge sideration of all facts they did not believe the confes sion, it would be “inadmissible” for their purposes State, Tex. Cr. Carbough,
should
it.
disregard
Cf.
However,
R.
II. defendant’s conten a consideration of This us brings did not warrant criminal event facts of this tions that A. N. J. S. kidnapping, for or conviction indictment either punish and the event the statute in any :118-1, 2A constitutionally. are invalid for its violation ment provided that: says The statute away man, forcibly kidnaps Any person takes or steals or who ** * man, or woman child, carries such sends or
woman ** any point *, child to guilty high other within this state misdemeanor, punished imprisonment life, shall be for or for years other such term of proper. not less than 30 as the court deems The historical evolution of this statute is set forth in Johnson, State v. 67 N. J. Super. Div. (App. 1961), Gibbs, and State v. 79 N. J. Super. Div. (App. 1963), and need not be repeated here. Since 1796 the Legislature has shown an concern increasing about the seriousness of and an kidnapping intent to make the description of the offense and the punishment therefor more relevant conditions of the times the need for deterrence. The common law prerequisite proof asportation of the victim from one country to another crime, to establish the changed New original Jersey statute to a require ment for transportation the victim “from this state into another state or Paterson country.” Laws New Jersey, Johnson, (1800); 67 N. J. at 420. Super, Ulti mately asportation element took on present form, its e., i. the forcible of the victim from taking one place “any other within point the state.”
Moreover, sentence fixed the offense took an as- *20 from a maximum cending severity of imprisonment years five mandate for present imprisonment life or for “such other term of not than 30 years less court the deems Id. at 430-433. proper.” to declare what shall be a power deemed crime fix
and to the maximum minimum and term of imprison for a ment such crime is committed the of the people State to the and not to the branch legislative judicial The fact that provide lawmakers more government. severe an offense than the courts punishment approve interference, is no unless it a ground judicial violates other constitutional or such prohibition against punish ment. courts consider whether dealing question punishment nature the criticized is such as to shock conscience and to violate of funda general principles fairness; whether mental shows comparison punish-
274
offense,
disproportionate
ment
be grossly
beyond
necessary
what is
whether the punishment goes
aim. Absent such a show
accomplish any
penal
legitimate
will.
v.
must
State
judiciary
respect
legislative
ing
Smith,
202,
Griffin,
58 N. J.
211
State v.
84
(1971);
N.
L.
N. J. L.
432
aff’d 85
J.
613
429,
1913),
Ct.
(Sup.
Zee,
J.
A.
Ex
13 N.
320-
Super. 312,
&(E.
1914);
parte
Zee,
N.
P.
v.
16
J. Super.
322
aff'd
C. State
Div.),
(Law
931,
Div.
cert.
343 U.
72 S Ct.
1951),
171
den.
(App.
S.
L.
Cruel Punish
96
Ed. 1340
Comment Note:
766,
(1952);
Sentence,
A.
R.
343,
33
L.
3d
352
Length
(1970).
ment —
that
Defendant claims also
the statute is unconstitu
exposes
tional on
face
conviction
defendant to
its
because
and maximum
of 30
years
prison
minimum sentence
unusual
of life
which constitutes cruel and
imprisonment
We cannot
Nor do we see
merit
agree.
any
punishment.
argument
arbitrary
such possible punishment
process
protection
constitutes
denial
due
equal
which
are as serious
suggests
some crimes
defendant
because
carry
do nót
as severe
against society
kidnapping
offenses
has
which reasonably
No case
been cited
punishment.
sup
Cox,
see,
v.
101
contrary
such a
On the
State
ports
position.
N. J.
470
Div.
certification
53
Super.
denied
(App.
1968);
Johnson,
Gibbs,
N. J.
v.
v.
supra;
510
State
State
(1969);
States,
F.
359
356,
Smith v. United
407
2d
(8 Cir.),
supra;
2113,
L.
753
den.,
966,
cert.
U.
89 S. Ct.
23
Ed. 2d
395
States,
v.
F.
578,
Hess
254
2d
588
Cir.
(8
United
(1969);
Ariz,
Howland,
v.
103
Defendant a subsidiary event, alleged criminal kidnapping offense, breaking entering incident *21 was for the of com- Rayborn of Mrs. purpose asportation e., i. claims offense, accomplish his He escape. pleting
275 that double jeopardy are principles violated when the basic crime intended committed is broken down by the State into constituent elements of the event and a single separate conviction for each element in sought order to aggravate the punishment.
It is true that in a
an
given case
asportation
the victim of the defendant’s first
crime in
sequence
events may be so incidental and so minimal as not to per
Williams,
mit fractionation.
v.
Compare People
2 Cal. 3d
894, 88 Cal.
208,
Rptr.
tion for kidnapping justified. in forc Defendant’s act Mrs. her ing Rayborn leave at apartment gun point to drive him in car her about at countryside night hour, an about her frequently shot, threatening being fact her to causing believe he intended to her shoot
276 she did risk to get in her death fright where point part an the commission ear, integral
out of the The forcible entering. crime of breaking of the single event be considered reasonably separate detention could separate and warranting prosecution. undertaken deliberately were not incidental The detention asportation risk increased the crime, they substantially underlying that inherent beyond normally harm to victim circumstances, Under the breaking entering. of kid crime justified guilt separate finding Ginardi, N. 438-441 435, v. J. Super. State 111 napping. b., v. o. N. J. 438 State (1971); Div. 57 1970), aff’d (App. Johnson, Cox, Gibbs, v. State supra; supra. Slate supra; 30 35 Hampton to The trial court sentenced attacked Prison, generally which defendant years was unconstitu statutory penalty that on the ground felt Division that sen Appellate severe. tionally minimum under the kid year term, a 30 tence be should motion reduced it statute, and on its own napping to minimum or maximum. any specification term without some cor requires this was incorrect In our judgment rective action.
The statute prescribes person convicted “shall life, be punished by imprisonment or for such other years less than 30 as the term of not court deems proper.” A. 2A:118-1. Service of kind N. J. S. sentence confinement in State Prison where all means sentences are term, for maximum and “be minimum required except Fisher, :164-17; N. J. A. 2A for life.” S. State v. sentences J. 373, N. 378-379 Div. Super. (App. 115 State v. 1971); Janiec, J. 25 N. 197 Div. Super. State v. (App. 1953); Moore, N. J. 419 Super. 1952). Div. State v. (App. Cf. Roleson, 403, 947, J. 14 N. cert. den. U. S. 74 S. Ct. L. 29 A. R. Ed. 1095 Annot. L. 2d 1344 (1954); (1953), case service. and later J. A. 2A:164-17, of N. penalty light specified act for than life imprisonment
under the less rea- kidnapping sonably means a sentence of a minimum of 30 years and a maximum term of fixed years by the court For short life. a sentence, example, case, as in this of a minimum of 30 years and maximum of a fixed years term above 30 appears to entirely -within the addition, scheme. In legislative it is com *23 patible with and subject Act, becomes to the N. J. Parole A. S. 30:4-123.10 which would give upon parole eligibility service of the minimum sentence or one-third of fixed maximum sentence.
The sentence altered Division by being Appellate invalid, problem of rectification us. confronts We see a no need for remand to the Division for Appellate that pur as in our view the correction Ac pose may be made here. the defendant’s cordingly, sentence is revised so as to impose a of a minimum of 30 and a term maximum of 31 years. See, 2:10-3; Ward, R. 57 State v. N. J. 75 compare Culver, den., v. N. J. 495, State 23 cert. 354 S. (1970); U. 925, 77 L. 1441 1387, S. Ct. 1 Ed. 2d Culver v. Good (1957), man, L. 842 359 U. S. 79 3 Ed. 884, S. Ct. 2d (1959); Fisher, Andrews, State v. v. N. J. Super. State 105 supra; 62 Div. nom rev’d other sub (App. 1969), on State grounds Horne, N. J. 372 State v. (1970); 84 N. J. Thompson, Div. Super. (App. 1964).
III. For the reasons expressed the of judgment the Appellate Division modified, is affirmed as and the is cause remanded trial court for entry corrected sentence. J.,C. I dissenting join
Weintraub, part. opinion the Court with except to its 30- respect treatment in N. J. S. A. 2A :118—1. year provision The statute provides that any person committing offense therein kidnapping misdemeanor, described “is guilty shall high life, for punished by imprisonment or for such other term of not than 30 less as the years court deems The proper.” to mandate “minimum” reads the statute
Court’s opinion authorize a “max- I read the statute to years. term of 30 in lieu of the maximum years less than 30 imum” term of not to be such term as the the minimum of life imprisonment, may select. sentencing judge Prison sen with Court’s opinion
I agree J. “be for a max N. A. 2A :164-17 to is S. tence required life,” for sentences term, except and minimum imum one But the year. question term be not less than minimum N. J. A. 2A :118-1 refers is whether portion quoted when it maximum speaks minimum term to the as the court deems years term of less than “such other term, is to the maximum I the reference think proper.” several reasons. judge given sentencing qualifies thus authority
The maximum and not life,” which itself a “imprisonment had the term,1 thus indicating Legislature minimum the sentencing invested maximum mind. Legislature from choice as is evident the use of the conjunc- judge *24 choice must be of like tion “or.” The of functional things maximum of sentences. It would make no sense quality —here a in ask penal judge our scheme to to choose sentencing a a maximum sentence and minimum between sentence. a Indeed, if the intended minimum term 30 Legislature of for be no maximum years, authority any there would term the imposed.2 Surely 30-year the minimum is provision imprisonment provision usually 1 Life is authorized a for without conceptually term, it is a a minimum but maximum term. 30-year provision minimum, Appel 2 If then related the impositing in Division in case would have been correct late this any Apparently 30-year a minimum term without maximum. Johnson, Super. 414, Appellate N. J. Division read State v. only imposition (App. 1901), a of “minimum” to call for the Div. years, imposed years In fact there to 35 term. the term Johnson, using in “minimum” was is not clear the word it speaking a of not less “minimum” and not of a “maximum” of years. than 30 cannot itself serve to authorize both a minimum years of 30 and a maximum of a years whatever number of may judge select. If a statute a an provided only that person guilty offense “shall be punished by for than imprisonment not less two years,” would maintained that the hardly sentencing be a judge could add maximum of he choose any duration might (other than of a maximum by course authorized a general statute the punishment for fixing misdemeanor). that class Nor can provision for for itself imprisonment life serve as maximum or maximum authority impose terms of years. This is because a be so choice mandated tween life imprisonment and for than imprisonment less not 30 years, both terms could simultaneously not be imposed conjunction unless the “and,” “or” were read mean if “or” read “and,” were to mean then a life coupled sentence awith 30-year minimum would he mandatory every case.3 for both minimum term 30 finding authority years and a maximum term of a ma- greater years, number jority the statute as if it read that apply person convicted life, shall be or punished “by offense imprisonment less than 30 imprisonment not more years than life or such term of court deems years proper.” That of course is not what the draftsman said. words, term,”
To other put it in “such other phrase isolation, taken in “maximum” could refer either in- “minimum” term. word or other must One terpolated reading phrase. majority interpolate “minimum” so becomes “such phrase other (mini- term.” But can mum) he phrase read as “such other believe, term.” That I (maximum) reading, is the one only *25 years 3 A sentence 30 life was to State sustained v. Rosen berg, Super. (App. 1954), apparently 30 N. J. Div. 369 on the thesis requires imposed per that a life statute sentence he but imposition years. mits also of a minimum of not than less 30 There advantages was no as to discussion whether that minimum or dis recipient advantages agree life I sentence. cannot reading that statute. 280 in the total words “such other” meaning to the
which gives shall be hardly say A “and draftsman would context. minimum life, for or other such by imprisonment punished the court deems years proper.” than 30 term of less “and shall be say sensible and correct to But it would be other maxi- life, for or for such by imprisonment punished mum 30 the court deems years not less than term of If wanted to the reasonable express thought one proper.” for a should be life but that there that maximum crime not below a lesser impose maximum, should be discretion what 30 he would said years, say precisely Legislature “shall be punished by imprison- the defendant here, for term of not less than life, for such other ment believe, I is That, pre- as the court deems years proper.” what intended. Legislature cisely becomes when reading That this is correct evident subject imprison is made to release from reference A minimum of would not serve mandatory years ment. Legisla I think it evident any apparent purpose. a more lenient term clause permit by ture intended to N. J. A. 30 :4-123.11 under person Under question. hav “after for release on parole a life is eligible sentence sentence, his commuta years of less ing twenty-five served earned behavior and time credits tion time good assign work by diligent application allowed reason A him about 14 years. can ments,” eligible which make would not hasten parole eligibility. “minimum” 30-year maximum imposed if life sentence were as the Hence life, of 30 years statute sentence (assuming permits N. J. 369), Rosenberg, supra, Super. see N. J. S. A. would be governed eligibility parole no cited, section role provides 3 :4-123.11, just for life. minimum when the sentence is for a maximum term rather imposed years And would have no years role life, again minimum of than *26 as to and this because of parole eligibility, two statutory N. J. S. A. 30:4-123.10 provisions. provides, as to first offender, that: penal serving No inmate of a or correctional institution sentence eligible
for a fixed minimum and maximum term shall be for con- parole sideration for release on until he has served his minimum sentence, less, sentence or fixed his maximum in- each 1/3 stance, good commutation time therefrom for behavior dili- and for gent application assignments sooner, to work whichever occurs sub- ject provisions of section 12 hereof. (Section provides second, further, offenders, or for shall be determined on eligibility parole the basis maximum N. J. higher percentage sentence imposed. A. if a 30:4-123.12.) Thus minimum of 30 were years imposed, parole would not be hastened under eligibility statutory provision just unless the maximum ex quoted ceeded years the crime was offender’s first offense. State v. 54: N. J. 335-336 Cooper, And even (1969). duration, the maximum were of extraordinary last would for it paragraph over, statute take same that: provides “* * * upon appear which a date whenever shall prisoner parole eligible on shall be consideration for for release eligible upon if a occurs later than the date which he would be so imposed then, case, upon him, and in
life sentence had been such eligible parole he shall be on deemed consideration release having years sentence, sentences, after served 25 of his less com- good mutation and al- time for behavior and time credits earned diligent assignments.” application lowed reason of to work
Thus a minimum mandatory of 30 years has no impact And of upon parole eligibility. course it would have no im- a final pact upon from discharge custody since completion aof sentence is determined maximum by the rather than minimum. I Hence find no role for a mini- mandatory mum of 30 years under our A statutory parole scheme. held that the Legislature found if it were only
role could be and no one advances scheme, override that parole intended that view. *27 has term hand,
On other the mandatory 30-year the maximum, for it would permit if it refers to the meaning case at an earlier date than the consideration parole harmony is in read, of a Thus the provision life sentence. only the general legislative practice prescribing the the discre sentence, “maximum” minimum to the leaving A. 2A:85-6, N. J. S. See sentencing judge. tion 2A:85-7, N. J. A. as to mis misdemeanors, and to high which deals with 2A:118-2, N. J. S. A. demeanors. Thus authorizes kidnap, “imprisonment threat or attempt both, or years,” fine, a term of not than more maximum and leaving thereby Legislature specifying to some judge. Although minimum to the sentencing mini mandatory offenses the has Legislature prescribed which Legis mum, I am not aware of instance any maxi authorized also specifying lature did so without us, before of the statute majority’s reading mum. Upon an without express minimum mandatory would be there more con It is years. a maximum term specification 30-year mandated style say with legislative sonant judge being maximum, sentencing applies term finds appropriate. fix the minimum he free to mandate I 30-year For these reasons conclude maximum the mini- rather than limits the underside a maximum mum. a trial judge may impose But of course in- no legal of 30 there was years. Accordingly in excess I can- years. of 30 to in the trial court’s sentence firmity or the maximum at 35 years the trial court fixed say he maximum because of that minimum at more than 1/3 If this minimum. mandatory read the to prescribe statute to re- would be free incorrect, trial court assumption of the statute. view my sentence under consider the dissents in part. in result and Weintraub, J.,C. concurs For Justices Justice Weintraub affirmance —Chief Jacobs, Hale, Francis, Proctor, Moun Schettino tain — 7.
For reversal —None. PLAINTIFF-APPELLANT, JERSEY, RAY OF STATE NEW KELLY, MOND DEFENDANT-RESPONDENT. Argued April 24, July 17, 1972. 1972 Decided