STATE OF NEW JERSEY VS. LANDEAN O. MALCOLM (13-05-0500, UNION COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2054-16T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
LANDEAN O. MALCOLM,
Defendant-Appellant.
___________________________
Submitted September 27, 2018 – Decided October 26, 2018
Before Judges Simonelli and O'Connor.
On appeal from Superior Court of New Jersey, Law
Division, Union County, Indictment No. 13-05-0500.
Joseph E. Krakora, Public Defender, attorney for
appellant (Stefan Van Jura, Deputy Public Defender II,
of counsel and on the brief).
Michael A. Monahan, Acting Union County
Prosecutor, attorney for respondent (Milton S.
Leibowitz, Special Deputy Attorney General/Acting
Assistant Prosecutor, of counsel and on the brief).
PER CURIAM
Following a jury trial, defendant Landean O. Malcolm was convicted of
second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); third-degree
aggravated assault, N.J.S.A. 2C:12-1(b)(2); fourth-degree unlawful possession
of a weapon, N.J.S.A. 2C:39-5(d); and third-degree possession of a weapon for
an unlawful purpose, N.J.S.A. 2C:39-4(d). On appeal, defendant raises the
following contention:
POINT ONE
DEFENDANT WAS DENIED HIS RIGHT TO A FAIR
TRIAL BY THE TRIAL COURT'S COMPLETE
FAILURE TO PROVIDE THE JURY WITH ANY
GUIDANCE ON HOW TO ASSESS THE
DEFENDANT'S ALLEGED, UNRECORDED
CONFESSION. U.S. CONST.[,] AMEND. V AND
XIV; N.J. CONST.[, ART.] I, ¶¶ 1, 9 AND 10. (Not
Raised Below).
We reject this contention and affirm.
I.
On the evening of December 24, 2012, Willie Boggs was working as a
bouncer at a bar in Plainfield when he was informed that a person inside the bar
had entered without paying the cover charge. Boggs testified that as he
approached that person, defendant approached Boggs and began yelling that he
had paid the person's cover charge. Boggs knew defendant as a regular customer
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of the bar whom he had seen "almost every day" during the five years Boggs
worked there. Gregory Troutman and Kevin Boyce, who were working as
bouncers that evening, testified that they also knew defendant as a frequent
customer of the bar.
Boggs testified that he told defendant several times to go to the payment
window in the vestibule of the bar and speak to the woman collecting the money
to verify he had paid for the other person. Defendant refused and continued
yelling at Boggs. Defendant finally went to the payment window and began
"overly-aggressively" yelling at the woman at the payment window. Boggs tried
to calm defendant down, but defendant "turned with violent gestures," as if he
was ready to fight, and continued yelling. As a result, Boggs decided to escort
defendant out of the bar. Boggs told defendant, "let's go, it's time to go home,"
and grabbed his arm, and led him out the door of the bar.
Boggs testified that defendant fell as he exited the bar. As he bent down
to help defendant get up, he saw a knife with a four- or five-inch blade in
defendant's right hand that had snagged the left side of his shirt. He touched his
left side and found defendant had stabbed him in the stomach. Boggs "went on
the defensive" to protect himself and began fighting with defendant. During the
struggle, defendant slashed him across the right side of his head with the knife.
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He tried to disarm defendant as they struggled, and defendant continued to try
to stab him.
Boggs also testified that defendant still had the knife in his hand when he
got defendant on the ground. Boyce was eventually able to take the knife from
defendant's hand. Defendant then bit Boggs's right thumb. Boggs got up and
Boyce and Troutman held defendant down until the police arrived. Boggs
received staples in his stomach and stiches in his head and has scars from his
injuries. Boggs did not see what Boyce did with the knife. The knife was never
recovered.
Troutman testified that when he came to the payment window, he saw
defendant was resisting Boggs and Boyce, and yelling and he tried to calm
defendant down. Troutman then went back into the bar. When he returned to
the vestibule, he saw that Boggs and Boyce were outside and Boggs had
defendant on the ground. He went over to assist Boggs and saw that defendant
had a knife in his hand and Boggs was trying to take it from him. He also saw
blood coming from Boggs's head. He held defendant down while Boggs got up.
He saw that the knife had been removed from defendant's hand, but did not know
what happened to it. The police arrived and took custody of defendant.
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Boyce testified that he heard a man exchanging "loud words" with Boggs
in the vestibule, but the man was not defendant. He saw Boggs throw the man
out the door and they started fighting. He then saw the man swinging a knife
and saw Boggs get hit in the head with the knife and blood coming from his
head. The man fell and Boyce stepped on his wrist to get the knife out of his
hand. He got the knife out of the man's right hand and kicked it away. He did
not know what happened to the knife. He and Troutman held the man down
until the police arrived.
Lieutenant Daniel Passarelli from the City of Plainfield Police Department
testified that when defendant arrived at police headquarters, he was
uncooperative, combative, threatened to kill the police officers, and resisted
arrest. Later, after having calmed down while in a holding cell, defendant called
Passarelli over to the cell, started talking, and said he wanted to tell Passarelli
what happened at the bar. When defendant started telling Passarelli what
happened at the bar, Passarelli told him to stop talking and gave defendant his
Miranda1 warnings. After stating he understood his rights, defendant began
relaying what happened. When defendant got to the point where he stabbed a
1
Miranda v. Arizona, 384 U.S. 436 (1966).
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bouncer, Passarelli said, "are you sure you want to say all this. With your rights
in mind, are you sure you want to continue with this." Defendant responded, "I
don't care" and continued telling Passarelli what happened. Defendant admitted
he got into a fight with a bouncer and stabbed him "[i]n the belly . . . with [his]
knife" and "tried to kill the mother fucker." Defendant also admitted that when
someone told him the police were coming, "he passed the knife off and he didn't
know where it went after that." Defendant then stopped talking to Passarelli.
Defendant's statement was not recorded because there was no recording
equipment in the area. However, Passarelli memorialized what defendant said
in a report he prepared immediately after defendant made the statement. On
cross-examination, defense counsel questioned Passarelli about defendant's
statement and why it was not recorded.
Defendant testified that he had an argument with Boggs over the cover
charge. Boggs dragged him to the door to get him out of the bar, and he tried to
pass Boggs to get back inside. The two got into a fistfight and defendant fell to
the ground. He denied he had a knife and said he did not know where the knife
came from. He was aware that Boggs was stabbed, but denied he stabbed him.
The police arrived and took him to police headquarters. He denied he gave a
statement to Passarelli and said that Passarelli lied about the statement.
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II.
Defendant argues that the State's failure to record his confession violated
Rule 3:17(a) and required the trial court to sua sponte charge Model Jury
Charges (Criminal), "Statements of Defendant (When Court Finds Police
Inexcusably Failed to Electronically Record Statement)" (2005). We disagree.
When a defendant fails to object to an error regarding jury charges, we
review for plain error. See State v. Funderburg, 225 N.J. 66, 79 (2016). "Under
that standard, we disregard any alleged error 'unless it is of such a nature as to
have been clearly capable of producing an unjust result.'" Ibid. (quoting R. 2:10-
2). "The mere possibility of an unjust result is not enough. To warrant reversal
. . . an error at trial 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.' "
Ibid. (citation omitted) (quoting State v. Jenkins, 178 N.J. 347, 361 (2004)). In
addition, any finding of plain error depends on an evaluation of the overall
strength of the State's case. State v. Cotto, 182 N.J. 316, 326 (2005). We discern
no plain error here.
Custodial interrogations conducted in a place of detention must be
electronically recorded when the person being interrogated is charged with
second-degree aggravated assault. R. 3:17(a). As we have held:
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The failure to record the interrogation does not require
suppression of a defendant's statement, but it "shall be
a factor for consideration by the trial court in
determining the admissibility of a statement, and by the
jury in determining whether the statement was made,
and if so, what weight, if any, to give to the statement."
Further, in the absence of recordation, the court "shall,
upon request of the defendant, provide the jury with a
cautionary instruction."
[State v. Anthony, 443 N.J. Super. 553, 566 (App. Div.
2016) (quoting R. 3:17(d), (e)).]
However, electronic recordation is not required where the statement "is not
recorded because electronic recording of the interrogation is not feasible[.]" R.
3:17(b)(i).
Here, the State established that electronic recording of defendant's
statement was not feasible because there was no recording system in the area
where defendant made the statement and Passarelli did not have access to
recording equipment. Accordingly, because there was no violation of Rule
3:17(a), there was no need to provide a cautionary instruction.
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Defendant also argues the court erred in failing to sua sponte give a
Hampton2 and Kociolek 3 charge. See Model Jury Charges (Criminal),
"Statements of Defendant" (2010). Again, we disagree.
A trial court should provide a Kociolek charge whenever a witness at trial
testifies regarding oral statements made by a defendant. Kociolek, 23 N.J. at
421. In such cases, the trial court must provide the jury with an instruction 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." Ibid.
"[T]he Kociolek charge should be given whether requested or not." State v.
Jordan, 147 N.J. 409, 428 (1997).
In addition, a trial court should provide a Hampton charge "whenever a
defendant's oral or written statements, admissions, or confessions are introduced
in evidence" regardless of "[w]hether [the charge is] requested or not[.]" Id. at
425. A jury "shall be instructed that they should decide whether . . . the
defendant's [statement] is true[,]" and if they conclude that it is "not true, then
2
State v. Hampton, 61 N.J. 250 (1972).
3
State v. Kociolek, 23 N.J. 400 (1957).
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they must . . . disregard it for purposes of discharging their function as fact
finders on the ultimate issue of guilt or innocence." Hampton, 61 N.J. at 272.
The failure to give the charges, however, is not always reversible error.
Jordan, 147 N.J. at 425, 428. We will only reverse when omission of the charges
was clearly capable of producing an unjust result in the context of the entire
case. Id. at 425, 429. If the statements were unnecessary to prove the
defendant's guilt "because there is other evidence that clearly establishes guilt,
or . . . the defendant has acknowledged the truth of his statement," the failure to
give a Hampton charge will not require reversal. Id. at 425-26. Likewise,
whether the failure to give the Kociolek charge constitutes plain error, "will
depend on the facts of each case." Id. at 428.
In State v. Harris, 156 N.J. 122, 183 (1998), our Supreme Court found that
failure to give a Hampton and Kociolek charge was not plain error because the
cross-examination of the testifying witness was sufficient to test his credibility
before the jury. The Court explained that "the principal value of the Kociolek
charge is to cast a skeptical eye on the sources of inculpatory statements
attributed to a defendant[,]" and opposing counsel's "devastating cross -
examination . . . accomplished that end." Ibid.
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The Court reached a similar conclusion in State v. Feaster, 156 N.J. 1, 72
(1998), finding that "[t]he very purpose of a Hampton charge is to call the jury's
attention to the possible unreliability of the alleged statements made by a
criminal defendant." Because the witness was "under a sustained attack during
which his credibility was thoroughly challenged" on cross examination, the
failure to give a Hampton instruction was not plain error. Ibid.
Here, although defendant did not request a Hampton or Kociolek charge,
the judge gave an instruction regarding witness credibility at the outset and close
of the trial. In addition, defense counsel cross-examined Passarelli about
defendant's statement, and there was other evidence that clearly established
defendant's guilt. Specifically, Boggs testified that he got into a fight with
defendant; saw a knife in defendant's hand that snagged the left side of his shirt;
touched that side and found he had been stabbed in the stomach; and defendant
slashed him across the right side of his head with the knife. Troutman testified
he went to assist Boggs and saw that defendant had a knife in his hand, saw
Boggs trying to take the knife away from defendant, and saw blood coming from
Boggs's head. Further, defendant admitted that he got into a fight with Boggs,
which contradicted Boyce's testimony it was not defendant who fought with
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Boggs. Accordingly, there was no error in the lack of a Hampton or Kociolek
charge.
Affirmed.
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