Lead Opinion
The opinion of the Court was delivered by
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,
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.
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 gai’bage can and hid, taking nothing from the intended robbery victim.
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
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,
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, “[wjhat was critical to the State’s
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,
Defendant filed a notice of appeal as of right. R. 2:2-l(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,
II.
Hampton
In State v. Hampton, supra, 61 N.J. 250,
Following the defendant’s arrest, he gave a statement to the police in which he corroborated the victim’s version of the facts, adding only that when she exited the car, he jumped up and the gun fired. Id. at 259-60,
During the defendant’s trial, the issue of the voluntariness of his statement was raised and a hearing was subsequently held outside the presence of the jury. Ibid. The defendant testified during the hearing. Ibid. His testimony raised no substantial conflict with respect to the Miranda warnings, his execution of the waiver, or his willingness to give a statement. The trial court ruled the statement admissible. Id. at 261,
Addressing defendant’s claim that the jury charge was prejudicial, we agreed with the Appellate Division and held that the charge as a whole was not prejudicial. Id. at 263,
We concluded that “there is no constitutional obligation to submit to the jury for determination the issue of whether the Miranda warnings were given to a defendant and the rights described thereby waived by him before he confessed. Since the question involves the competency of evidence, decision thereon traditionally rests with the trial judge.” Id. at 267,
the ti'ial court alone shall determine (1) whether the Miranda warnings were given to the accused and his rights thereunder waived by him before the confession was given; and that if it finds the warnings were not given, or if given the rights not waived, the confession must be excluded, and (2) if those conditions were satisfied, whether in light of all those circumstances attending the confession it was given voluntarily. If these questions are resolved in favor of the State, then, without being advised of the court’s decision, the jury shall be instructed that they should decide whether in view of all the same circumstances the defendant’s confession is true. If they find that it is not true, then they must treat it as inadmissible and disregard it for purposes of discharging them function as fact finders on the ultimate issue of guilt or innocence.
[Id. at 272,294 A.2d 23 .]
See also State v. Thomas, 76 N.J. 344, 366,
The New Jersey Rules of Evidence codified the holding in Hampton and state:
Where by virtue of any rule of law a judge is required in a criminal action to make a preliminary determination as to the admissibility of a statement by the defendant, the judge shall hear and determine the question of its admissibility out of the presence of the jury. In such a hearing the rules of evidence shall apply and the burden of persuasion as to the admissibility of the statement is on the prosecution. If the judge admits the statement the jury shall not be informed of the finding that the statement is admissible but shall be instructed to disregard the statement if itfinds that it is not credible. If the judge subsequently determines from all of the evidence that the statement is not admissible, the judge shall take appropriate action.
[N.J.R.E. 104(c) (emphasis added).]
The comment following N.J.R.E. 104(c) notes that in 1976 the 1967 New Jersey Rule was amended in response to State v. Hampton. N.J.R.E. 104(c) cmt. The comment also explains that the rule’s “application is limited to defendant’s statements alone, and it does not purport to deal with the admissibility of other evidence such as identification evidence.” Ibid.
Kociolek
State v. Kociolek, 23 N.J. 400,
We explained that the trial court erred in refusing to charge the jury that it should “receive, weigh and consider such evidence with caution in view of the generally recognized risk of inaccuracy and error in communication and recollection of verbal utterances and misconstruction by the hearer.” Id. at 421,
The antidote for the general distrust associated with testimony reporting any extra-judicial oral statements, is “an instruction to the jury against trusting overmuch the accuracy of such testimony.” Ibid. We observed, “verbal precision is of course important to the correct understanding of any verbal utterance, whether written or oral, because the presence or absence or change of a single word may substantially alter the true meaning of even the shortest sentence.” Id. at 421-22,
III.
Plain Error Standard
Rule 2:10-2 reads:
Any error or omission shall be disregarded by the appellate court unless it is such a nature as to have been clearly capable of producing an unjust result, but the appellate court may, in the interests of justice, notice plain error not brought to the attention of the trial or appellate court.
In this case, defendant did not request and the trial court did not give a Hampton or Kociolek charge. Defendant seeks reversal under the “plain error” standard, arguing that those omissions from the trial court’s instructions were “clearly capable of producing an unjust result.”
“Appropriate and proper charges to a jury are essential for a fair trial.” State v. Green, 86 N.J. 281, 287,
For an error to constitute plain error, however, not every possibility of an unjust result will suffice. With a jury trial, the possibility must be “sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached.” State v. Macon, 57 N.J. 325, 336,
In considering a jury charge, plain error is
Legal impropriety in the charge prejudicially affecting the substantial rights of the defendant sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result.
[State v. Hock, 54 N.J. 526, 538,257 A.2d 699 (1969), cert. denied, 399 U.S. 930, 90 S.Ct. 2254,26 L.Ed.2d 797 (1970); accord State v. Lucas, 30 N.J. 37,152 A.2d 50 (1959).]
In determining whether a charge was erroneous, the charge must be read as a whole. State v. Wilbely, 63 N.J. 420, 422,
Some jury instructions, however, are so crucial to the jury’s deliberations on the guilt of a criminal defendant that errors in those instructions are presumed to be reversible. “Errors impacting directly upon these sensitive areas of a criminal trial are poor candidates for rehabilitation” under the plain error theory. State
No matter how abhorrent the offense charged nor how seemingly evident the guilt, [everyone] is entitled to a fair trial surrounded by the substantive and procedural safeguards which have stood for centuries as bulwarks of liberty in English speaking countries.
[Id. at 129,106 A.2d 541 .]
TV.
The Appellate Division has held that the failure to provide a requested Hampton instruction is reversible as harmful error. In State v. Boyle, 198 N.J.Super. 64, 69,
More recently, in State v. Jackson, 289 N.J.Super. 43,
For instance if the crime had been videotaped and it was committed before numerous unimpeachable witnesses with strong additional circumstantial evidence, the failure to give a requested Ha/mpton/Kociolek charge concerning a defendant’s oral statements should not justify the time or expense of a retrial.
[Ibid.]
The Appellate Division has also held that the failure of a trial court to provide a Hampton charge, notwithstanding the defendant’s failure to request such a charge, constitutes plain error. For example, in State v. Nutter, 258 N.J.Super. 41,
The Appellate Division, however, has also held that the failure to give a Hampton charge is not plain error. In State v. Setzer, 268 N.J.Super. 553,
After an investigation, the defendant and Traci were apprehended. Id. at 560,
The trial judge clearly and repeatedly instructed the jury that it was to consider the credibility of all of the testimony, which included the testimony as to the defendant’s statement. The tidal court’s omission of the Hampton instruction in this instance was therefore, not clearly capable of producing an unjust result.
[Id. at 565,634 A.2d 127 .]
The court added however, that “strict adherence to Hampton will avoid similar appellate review in future cases.” Ibid.; see also State v. Laboy, 270 N.J.Super. 296,
V.
Whether requested or not, whenever a defendant’s oral or written statements, admissions, or confessions are introduced in evidence the Hampton instruction, directing the jury to determine the credibility of the statements without any knowledge that the court has already determined the issue of voluntariness, should be given. By using the term “shall” in N.J.R.E. 104(e), we expressly recognized that a Hampton charge is required. Because of the critical role that a defendant’s oral and written statement may have, a jury should be advised to focus on the credibility of those statements. Indeed, unless a defendant specifically requests that the Hampton charge not be given, and the trial court satisfies itself with written findings that such reasons have merit, a Hampton charge should always be given.
The failure of a court to give a Hampton charge, however, is not reversible error per se. It is reversible error only when, in the context of the entire ease, the omission is “clearly capable of producing an unjust result____” R. 2:10-2. That problem would arise most frequently when the defendant’s statement is critical to the State’s case and when the defendant has challenged the statement’s credibility. If, however, the defendant’s statement is unnecessary to prove defendant’s guilt because there is other
In this case, there was substantial additional evidence of defendant’s guilt apart from defendant’s statement. Defendant did not deny he killed Thomas. Two eyewitnesses (one a co-conspirator in the incident and the other the robbery victim) testified as to the criminal event. Their testimony corroborated defendant’s initial oral statement. The case, therefore, essentially boiled down to which version of the events the jury believed: the earlier version contained in defendant’s initial statement where he admitted shooting the wrong person which was consistent with the eyewitness accounts; or the version found in the tape-recorded statement in which he stated that a struggle between himself and the robbery victim caused the gun to discharge.
Based on the trial court’s instructions to the jury, and defense counsel’s arguments urging the jury to believe defendant’s taped statement and find that the first statement to the police “never existed,” we'are satisfied that the jury knew that it had to decide between the credibility of defendant’s two statements. See State v. Maldonado, 137 N.J. 536, 575,
Nevertheless, the Hampton charge should have been given based on the directive in N.J.R.E. 104(c). Here, however, the corroborating testimony of the two eyewitnesses constituted sufficient evidence to establish defendant’s guilt, and the omission of the Hampton charge was not plain error capable of producing an unjust result.
VI.
There are only a handful of reported Appellate Division decisions that address whether the failure to charge pursuant to
In State v. Campisi, 47 N.J.Super. 455,
The court rejected the defendant’s claim that the lack of a Kociolek charge constituted plain error and observed that “we perceive no plain error affecting the substantial rights of this appellant in the context of the whole of the proofs.” Id. at 460,
While we apprehend the dangers incident to resting a concept of guilt upon such verbal admissions in that there should be special protection against the possibility of faulty memory, error in accurate understanding and repetition, ... we sense in the proofs of this case, an absence of such injustice.
[Ibid.]
Again, in State v. Travers, 70 N.J.Super. 32,
More recently, in State v. Laboy, 270 N.J.Super. 296,
Like the Hampton charge, the Kociolek charge should be given whether requested or not. Oral statements should be viewed with caution because of the “generally recognized risk of inaccuracy and error in communication and recollection of verbal utterness and misconstruction by the hearer.” Kociolek, supra, 23 N.J. at 421,
In this case, our determination that the failure to give the Hampton charge is not plain error also supports our holding that the failure to give the Kociolek charge, in isolation, or in combination with the failure to give the Hampton charge, did not have the capacity to bring about an unjust result.
VII.
Finally, the State argues that in view of the trial court’s general and comprehensive credibility instructions to the jury concerning its role in assessing credibility, specific credibility instructions regarding a defendant’s statements are not necessary for a fair trial. We disagree. General jury instructions may not always sufficiently impart to a jury its responsibilities and limitations. See State v. Wilson, 128 N.J. 233, 240,
Two Appellate Division opinions address the issue of whether general credibility instructions are sufficient in view of the Hampton directive. In State v. Nutter, supra, the court found that the trial court failed to instruct the jury to determine if the defendant’s statement to the police was credible. 258 N.J.Super, at 59,
The Appellate Division has also held, however, that general credibility instructions are sufficient absent a specific Hampton charge. In State v. Setzer, supra, the trial court failed to include a Hampton charge, but included a general credibility charge. 268 N.J.Super, at 563-64,
The trial judge clearly and repeatedly instructed the jury it was to consider credibility of all of the testimony which included the testimony as to defendant’s statement. The trial court’s omission of the Hampton instruction in this instance was therefore, not clearly capable of producing an unjust result.
[Id. at 565,634 A.2d 127 .]
The Setzer court cautioned, however, that “strict adherence to Hampton will avoid similar appellate review in future eases.” Ibid.
The Hampton charge better safeguards, a defendant’s right to a fair trial than does a general.credibility instruction. Given the mandate of N.J.R.E. 104(c) and the fact that a jury should be given more guidance, rather than less, especially in those eases in which a defendant’s statements are critical to the State’s ease, specific Hampton and Koeiolek instruction should be given. An appropriate instruction is included in the Model Jury Charges.
We emphasize that the Hampton and Kociolek charges are required and that their omission imposes a significant burden on the State to demonstrate that such an error is not plain error. Moreover, that burden will be heightened in a case in which the plain error standard is not applicable, that is, a case in which a defendant has specifically requested those charges and the trial court has refused to give them. We agree, however, with the Appellate Division that on this record the failure to give the Hampton charge and the Kociolek charge, individually or in combination, is not reversible error per se.
Accordingly, the judgment of the Appellate Division is affirmed.
For affirmance — Chief Justice PORITZ, and Justices HANDLER, POLLOCK, O’HERN, GARIBALDI and COLEMAN — 6.
For reversal and remandment — Justice STEIN — 1.
Notes
The Model Jury Charge (revised January 29, 1996) contains a combined Hampton and Kociolek charge.
Dissenting Opinion
dissenting.
Based on this record, I conclude that the trial court’s omission of the instructions dictated by State v. Hampton, 61 N.J. 250, 271-72,