SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-825-97T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
VERNON GREEN,
Defendant-Appellant
Submitted: November 10, 1998 - Decided:
January 22, 1999
Before Judges Brochin, Kleiner and Steinberg.
On appeal from the Superior Court of New
Jersey, Law Division, Cumberland County.
Ivelisse Torres, Public Defender, attorney for
appellant (Sylvia Orenstein, Assistant Deputy
Public Defender, of counsel and on the brief).
Peter Verniero, Attorney General, Attorney for
respondent (Craig Z. Zwillman, Deputy Attorney
General, of counsel and on the brief).
The opinion of the court was delivered by
STEINBERG, J.A.D.
Following a trial by jury, defendant Vernon Green was
convicted of second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count one); third-degree aggravated assault on a police
officer, N.J.S.A. 2C:12-1(b)(5) (count two); second-degree eluding
a law enforcement officer, N.J.S.A. 2C:29-2(b) (count three); and
second-degree aggravated assault while eluding a law enforcement
officer, N.J.S.A. 2C:12-1(b)(6) (count four).
The trial judge sentenced defendant to ten years of
imprisonment with a five-year period of parole ineligibility on
count one to run consecutively to a sentence defendant was then
serving; a concurrent five-year term of imprisonment on count two;
a concurrent ten-year term of imprisonment on count three; and a
concurrent ten-year term of imprisonment on count four. The
appropriate monetary penalties were also assessed. However, on
count four the trial judge neglected to impose the mandatory
drivers license revocation prescribed by 2C:29-2(b).
On appeal defendant raises the following issues:
POINT I THE TRIAL COURT'S REFUSAL TO CHARGE
THE JURY ON THE DEFENSE OF
DEFENDANT'S INTOXICATION AT THE TIME
OF THE OFFENSE DEPRIVED DEFENDANT OF
HIS CONSTITUTIONAL RIGHT TO DUE
PROCESS AND A FAIR TRIAL. (U.S.
CONST., AMENDS. V, VI, XIV; N.J.
CONST. (1947), ART. I, PARS. 1, 9,
10).
POINT II THE TRIAL COURT SHOULD HAVE ENTERED
A JUDGMENT OF ACQUITTAL ON THE
CHARGE OF SECOND-DEGREE AGGRAVATED
ASSAULT SUA SPONTE BECAUSE THE STATE
FAILED TO PROVE, BEYOND A REASONABLE
DOUBT, THAT DETECTIVE FELICE HAD
SUFFERED SERIOUS BODILY INJURY.
POINT III IN A CASE WHERE DETECTIVE FELICE'S
INJURIES WERE CAUSED BY HIS OWN
ACTIONS, IT WAS PLAIN ERROR FOR THE
TRIAL COURT NOT TO CHARGE THE JURY
ON CAUSATION. (NOT RAISED BELOW).
POINT IV THE TRIAL COURT ERRED BY FAILING TO
INSTRUCT THE JURY ON THE LESSER-INCLUDED OFFENSE OF SIMPLE ASSAULT,
THUS DEPRIVING HIM OF A FAIR TRIAL.
(U.S. CONST. AMENDS. VI, XIV; N.J.
CONST. (1947), ART. I, PARS. 1, 9,
10)(NOT RAISED BELOW).
POINT V THE PROSECUTOR'S MISCONDUCT BOTH
DURING TRIAL AND IN SUMMATION DENIED
MR. GREEN A FAIR TRIAL, IN VIOLATION
OF THE CONSTITUTIONS OF THE UNITED
STATES AND NEW JERSEY. U.S. CONST.
AMENDS. V, VI, XIV; N.J. CONST. ART.
I, ¶¶ 1, 9, 10 (NOT RAISED BELOW).
POINT VI IF A JUDGMENT OF ACQUITTAL IS NOT
ENTERED ON COUNT ONE, DEFENDANT'S
CONVICTION FOR SECOND-DEGREE
AGGRAVATED ASSAULT MUST BE MERGED
WITH THAT FOR SECOND-DEGREE
AGGRAVATED ASSAULT WHILE ELUDING, TO
PREVENT VIOLATION OF HIS RIGHT TO BE
FREE OF DOUBLE PUNISHMENT UNDER THE
STATE AND FEDERAL CONSTITUTIONS (NOT
RAISED BELOW).
POINT VII BECAUSE THE JUDGE FAILED TO PROPERLY
WEIGH THE AGGRAVATING AND MITIGATING
CIRCUMSTANCES, DEFENDANT'S SENTENCE
IS MANIFESTLY EXCESSIVE.
We conclude that the independent and cumulative effect of the
failure of the trial judge to charge the jury regarding causation
on count one, see N.J.S.A. 2C:2-3, as well as the failure of the
trial judge to limit the jury's consideration on count one to an
attempt to cause serious bodily injury, and the failure of the
trial judge to charge the lesser-included offense of simple
assault, N.J.S.A. 2C:12-1(a)(1) on count two, deprived defendant of
his constitutional right to a fair trial on those counts. See
State v. Orecchio,
16 N.J. 125, 129-30 (1954). Those errors were
clearly capable of producing an unjust result regarding the
convictions on counts one and two, and we reverse those
convictions. We also reverse the conviction on count four due to
the absence of a charge on that count. We affirm the conviction on
count three.
According to the State's proofs, on November 10, 1995,
Millville Detectives Don Felice, Robert Chard, and Ron Harvey, all
of whom testified against defendant, were conducting a surveillance
operation at 46 North Third Street, the location of a known crack
house. The detectives observed defendant drive up to the house in
a red Mitsubishi sports car, enter the house for five or ten
minutes, and return to his car. They recognized defendant from
past surveillance and encounters with him, and began to follow him
as he departed. Defendant pulled into a well-lit parking lot at
the Elks Lodge approximately fifteen or twenty yards from a public
telephone. The detectives followed defendant into the parking lot
and parked their unmarked car in front of defendant's vehicle
"nose-to-nose". Although all three detectives were in plain
clothes, Felice said he was wearing a police jacket with the word
"police" displayed on the rear and right chest area of the jacket.
The detectives exited the undercover vehicle. Felice approached
the driver's side of defendant's car. According to Felice, he
identified himself as a police officer and, when he was twelve to
eighteen inches from defendant's vehicle, displayed his badge and
told defendant he would like to speak to him. Felice claimed that
as he displayed his badge defendant put his vehicle in reverse and
"peeled" backward quickly.
Felice testified that he ran after the car, shouting "police,
stop the car, Vernon, stop the car" . Nevertheless, defendant drove
forward and the vehicle struck Felice in the left leg causing him
to experience some pain in the leg. Felice continued to run
alongside defendant's car and punched his right hand through the
driver's side window, shattering the window and cutting his hand.
His purpose was to gain entry into the vehicle to shut the ignition
off. With the window broken, Felice testified that he continued
shouting to defendant, "police, stop the car, Vernon". Defendant's
vehicle was moving quickly and Felice rolled off onto the ground.
Felice was later taken by ambulance to a hospital where it was
determined that he had suffered lacerations to both hands, cuts to
some of his fingers, and a bruise on his left leg. He was left
with a scar on his palm approximately an inch and a half long. On
cross-examination, Felice conceded that when his vehicle parked in
front of defendant's vehicle, the police car's headlights may have
been in defendant's eyes. On cross-examination Felice also said
that once the window was broken he was no more than six inches from
defendant, shouting in a loud voice, identifying himself as a
police officer, and commanding defendant to stop the vehicle.
Detectives Chard and Harvey testified and corroborated Felice's
version of the incident. Harvey remained with Felice at the
parking lot and Chard pursued defendant. A high speed chase
ensued, at times at speeds of up to eighty miles per hour, on a
winding, residential road. At one point defendant forced two cars
off the road; at another point he forced a car into the other lane
of travel. Chard was joined by two backup vehicles. The chase
ended when defendant stopped. Chard pulled in front of defendant
with his vehicle and blocked him, and defendant was apprehended.
According to Chard, at the station defendant said he fled
because he thought the police were drug dealers who were after him.
However, Chard also testified that defendant later changed his
story, admitting that he recognized Chard when he first approached
defendant in the parking lot. Chard further testified that he had
seen defendant approximately fifty times over the course of fifteen
years and defendant knew that he was a police officer.
Defendant testified that he had argued with his wife that
evening and was upset when he left home. He admitted going to the
crack house and smoking crack cocaine because he was depressed. He
said he went to the Elks Lodge parking lot to telephone his wife.
According to defendant he began to gather his thoughts as to what
he would say to his wife when a vehicle pulled up behind him. He
said he saw one individual get out and approach his car. He
claimed to have been startled because the vehicle came up behind
him quickly. Defendant said his window was up and his radio was
playing loudly. He saw the person run towards his car but denied
hearing him say anything to him. He put his car in reverse and
then started to go forward when the window broke. He claimed he
was frightened because he had just left a crack house and had
previous altercations with drug dealers. Defendant asserted that
he was under the influence of cocaine at the time. He denied that
Felice was wearing a police jacket and denied that the detectives
had identified themselves or commanded him to stop. He claimed he
did not realize they were police officers. He also denied striking
Felice with his vehicle and telling Chard at the station that he
had recognized Chard at the parking lot.
Prior to summation the judge conducted a preliminary
conference in chambers and then conducted a charge conference on
the record. Defense counsel specifically requested a charge on
intoxication. See N.J.S.A. 2C:2-8. The basis for that request was
that defendant was observed leaving a crack house, that the
detectives said they initially approached defendant because they
believed his erratic driving was drug-induced, and that defendant
testified he had ingested crack cocaine immediately prior to his
arrest. The trial judge denied the request. Defense counsel made
no other requests to charge. Specifically, defense counsel did not
request the judge to charge any lesser-included offenses.
We first consider defendant's contention that the trial judge erred in denying his request to charge the jury on the defense of intoxication. We disagree. Intoxication is a defense if it negates an element of the offense. See N.J.S.A. 2C:2-8(a). A trial court is only required to instruct the jury on intoxication if there is a rational basis for a conclusion that defendant's faculties were so prostrated that he or she was incapable of forming an intent to commit the crime. See State v. Mauricio, 117 N.J. 402, 418-19 (1990); State v. Cameron, 104 N.J. 42, 58 (1986). There was no rational basis for a conclusion that defendant had reached that level of intoxication. See State v. Micheliche, 220 N.J. Super. 532, 543 (App. Div.), certif. denied, 109 N.J. 40 (1987), where in rejecting defendant's contention that he was entitled to a charge on intoxication simply because he had consumed large quantities of alcohol, we observed that the degree of intoxication must be such as to bring about so great a prostration of the actor's faculties that the requisite mental state was totally lacking. See also State v. Selby, 183 N.J. Super. 273, 276 (App. Div. 1981), where we observed that defendant's admission that he smoked marijuana and stated that he felt "high" was insufficient to entitle him to a charge on intoxication, particularly since his testimony showed his awareness and recollection in detail of the events of the night in question.
We next consider defendant's contention that the trial judge should have sua sponte entered a judgment of acquittal on the first count of the indictment which charged defendant with second-degree aggravated assault in violation of N.J.S.A. 2C:12-1(b)(1). We reject that contention. In considering a motion for a judgment of acquittal at the close of the State's case or after all the evidence has been closed, the test is:
whether, viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt.
[State v. Reyes,
50 N.J. 454, 459 (1967). See
also R. 3:18-1.]
A person is guilty of second-degree aggravated assault only
if, with one of the states of mind prescribed by the statute, he
attempts to cause or causes serious bodily injury to another.
N.J.S.A. 2C:12-1(b)(1). Serious bodily injury is defined as
"bodily injury which creates a substantial risk of death or which
causes serious, permanent disfigurement, or protracted loss or
impairment of the function of any bodily member or organ." See
N.J.S.A. 2C:11-1(b). The State properly conceded, and we agree,
that the injuries suffered by Felice do not meet the statutory
definition of serious bodily injury.
However, the State proceeded on the theory that defendant
attempted to cause serious bodily injury to Felice. In order to
convict a defendant of attempted aggravated assault, the State must
prove beyond a reasonable doubt that defendant acted with the
culpability required for the crime of aggravated assault, and that
defendant acted with the purpose of causing the result that is an
element of aggravated assault, namely, serious bodily injury of
another. N.J.S.A. 2C:5-1(a)(1) and (2); State v. Robinson,
131 N.J. 484-85 (1994). In viewing the State's evidence in its
entirety and giving the State the benefit of all its favorable
testimony as well as all of the favorable inferences which
reasonably could be drawn from that evidence, a reasonable jury
could have found defendant guilty of the charge of attempted
aggravated assault beyond a reasonable doubt. A jury could have
inferred that defendant placed his car in forward gear and drove it
towards Felice and intentionally struck him. In addition, the jury
could also have found that Felice then ran alongside defendant's
car and punched his right hand through the driver's side window.
With Felice hanging onto defendant's car, defendant accelerated
causing Felice to roll off the car onto the ground. A jury could
have concluded from this evidence that defendant's purpose or
conscious objective was to cause serious bodily injury to Felice.
The trial judge did not err in not sua sponte dismissing count one
of the indictment.
Although we have concluded that the trial judge did not err in
not sua sponte dismissing count one of the indictment, we are
nevertheless constrained to reverse the conviction on that count
due to an error in the charge. As we have noted, the evidence was
insufficient to warrant submission to the jury of the charge of
aggravated assault based upon the theory that defendant actually
caused serious bodily injury to the victim but was adequate to
support conviction of that crime based on the theory that defendant
attempted to cause serious bodily injury to Felice. The trial
judge, however, did not limit the jury's consideration on count one
to the theory of an attempt to cause serious bodily injury to
Felice. Since defendant did not object to the charge or raise this
issue on appeal, we consider whether the failure to limit the
jury's consideration to the theory of an attempt to cause serious
bodily injury was plain error in that it was clearly capable of
producing an unjust result. See R. 2:10-2.
Correct jury instructions are essential for a fair trial since
they are at the heart of the proper execution of the jury function.
See State v. Alexander,
136 N.J. 563, 571 (1994). Accordingly,
ordinarily erroneous jury instructions are poor candidates for
rehabilitation under the Plain Error Rule. See State v. Burgess,
298 N.J. Super. 254, 271 (App. Div. 1996) aff'd,
154 N.J. 181
(1997). We conclude that the failure of the trial judge to limit
the jury's consideration on count one to a theory of an attempt to
cause serious bodily injury to Felice had the clear capacity to
confuse the jury and therefore constitutes plain error since it was
clearly capable of producing an unjust result. See Conklin v.
Hannoch Weisman,
145 N.J. 395, 409 (1996); Ewing v. Burke,
316 N.J.
Super. 287 (App. Div. 1998). Accordingly, we reverse the
conviction on count one. On retrial of count one, the charge to
the jury should focus on an attempt to cause serious bodily injury
to Felice. The jury should not be charged alternatively under a
theory that defendant actually caused serious bodily injury to
Felice.
We next consider defendant's contention that the trial judge erred in failing to charge the jury on causation. Regarding the charge of aggravated assault, this issue is moot by virtue of our decision that the case should not be presented to the jury on a theory that defendant actually caused serious bodily injury to Felice. However, it is not moot regarding a theory of simple assault. See Part D of this opinion, infra. Defendant did not request a charge on causation either prior to trial pursuant to R. 1:8-7(a) or at the charge conference that was conducted prior to summations pursuant to R. 1:8-7(b). Moreover, although given the opportunity to do so, defendant did not object to the jury instructions for failure to include a specific charge on the question of causation. See R. 1:7-2. The absence of an objection suggests that trial counsel perceived no error or prejudice, and, in any event, prevents the trial judge from remedying any possible confusion in a timely manner. See State v. Chew, 150 N.J. 30, 82 (1997). A reviewing court may reverse on the basis of unchallenged error only if it finds plain error clearly capable of producing an unjust result. See State v. Afanador, 151 N.J. 41, 54 (1997); R. 2:10-2. However, we agree with defendant that in this case there was a factual issue regarding causation that required the trial judge to give a fact-specific causation charge, and that her failure to do so was plain error.
A person is guilty of second-degree aggravated assault if he either attempts to cause serious bodily injury to another, or, in fact, causes such injury, either purposely or knowingly, or, alternatively, under circumstances manifesting extreme indifference to the value of human life, recklessly causes such injury. N.J.S.A. 2C:12-1(b)(1). See N.J.S.A. 2C:2-2(b) (defining "purposely," "knowingly," and "recklessly.")
N.J.S.A. 2C:2-3 addresses the question of causation as follows:
(a) Conduct is the cause of a result when:
(1) It is an antecedent but for
which the result in question would
not have occurred; and
(2) The relationship between the
conduct and result satisfies any
additional causal requirements
imposed by the code or by the law
defining the offense.
(b) When the offense requires that the
defendant purposely or knowingly cause a
particular result, the actual result must be
within the design or contemplation, as the
case may be, of the actor, or, if not, the
actual result must involve the same kind of
injury or harm as that designed or
contemplated and not be too remote, accidental
in its occurrence, or dependent on another's
volitional act to have a just bearing on the
actor's liability or on the gravity of his
offense.
(c) When the offense requires that the
defendant recklessly ... cause[d] a particular
result, the actual result must be within the
risk of which the actor is aware, ... or, if
not, the actual result must involve the same
kind of injury or harm as the probable result
and must not be too remote, accidental in its
occurrence, or dependent on another's
volitional act to have a just bearing on the
actor's liability or on the gravity of his
offense.
Here, the injury to Felice's leg, which was relatively minor,
was caused when defendant struck Felice with his car. The other
injuries sustained by Felice were caused, in substantial part, by
his own volitional act of punching his fist through the window of
defendant's vehicle. Had the jury been properly instructed on
causation it may have had a reasonable doubt whether the injuries
sustained by Felice to his hands and fingers which occurred when he
punched his fist through the window of defendant's car involved the
same kind of injury or harm as that designed or contemplated by
defendant, or whether those injuries were too remote, accidental in
their occurrence, or dependent on the violational act of Felice to
have a just bearing on defendant's liability or on the gravity of
his offense. See N.J.S.A. 2C:2-3(b) and (c). Therefore, the
failure to charge causation regarding the injuries to Felice's
hands and fingers on the theory that defendant actually caused
serious bodily injury to the victim, possessed the clear capacity
to bring about an unjust result. See State v. Martin, supra, 119
N.J. at 17.
We next consider defendant's contention that his conviction under the second count of the indictment that charged him with third-degree aggravated assault upon a law enforcement officer must be reversed due to the failure of the trial judge to sua sponte instruct the jury on the lesser-included offense of simple assault. Under N.J.S.A. 2C:12-1(b)(5)(a), a person is guilty of aggravated assault if he commits a simple assault upon a law enforcement officer who was acting in the performance of his duties while in uniform or exhibiting evidence of his authority. Here, in light of defendant's contention that he was unaware of Felice's status as a law enforcement officer, the record indicates the appropriateness of a charge of simple assault. See State v. Choice, 98 N.J. 295, 299 (1985). Two of the statutory elements of the offense were contested. Defendant testified that the officers were not in uniform and did not identify themselves as police, and that he did not realize they were police officers. If the jury felt that that testimony was sufficient to create a reasonable doubt as to either or both of those elements, there would have been a rational basis to have found defendant guilty only of simple assault under count two. The failure to charge simple assault as a lesser-included offense of aggravated assault on count two was clearly capable of producing an unjust result. See R. 2:10-2. We therefore reverse the conviction on count two and remand for a new trial.
Although not raised by defendant at trial by way of an objection to the charge or on appeal, the jury charge on count two is incomplete. The judge followed the Model Jury Charge and essentially instructed the jury that the State must prove that defendant caused bodily injury to Felice, who was a law enforcement officer acting in the performance of his duties and exhibiting evidence of his authority purposely, knowingly or recklessly. That instruction omits any reference to scienter. The jury should have been instructed that, in addition to the other elements of the offense, it must find beyond a reasonable doubt, that defendant knew that Felice was a law enforcement officer acting in the performance of his duties, while in uniform or exhibiting evidence of his authority. See State v. Parsons, 270 N.J. Super. 213, 224 (App. Div. 1994); State v. Moll, 206 N.J. Super. 257, 260 (App. Div.), certif. denied, 103 N.J. 498 (1986).See footnote 1 The Model Jury Charges are only guidelines, and a trial judge must modify the Model Charge when necessary so that it conforms with the facts, circumstances, and law that apply to the facts being tried. See State v. Concepcion, 111 N.J. 373, 379 (1988).See footnote 2 The jury charge given could have led the jury to conclude that it could convict defendant of aggravated assault if he committed a simple assault upon Felice if Felice was acting in the performance of his duties, even though the jury had a reasonable doubt that defendant was aware of the fact that Felice was a law enforcement officer acting in the performance of his duties. On retrial, the jury should be so charged as to scienter.
We next consider defendant's contention that the prosecutor's misconduct during trial and summation denied defendant a fair trial. These alleged errors were not brought to the trial judge's attention by way of objection and are raised for the first time on appeal. For a conviction to be reversed based upon prosecutorial misconduct, the conduct complained of must be so egregious as to deprive a defendant of a fair trial. State v. Harvey, 151 N.J. 117, 216 (1997).
During the course of cross-examination of defendant, defendant was asked four times whether the police officers were telling the truth when they testified. The following exchanges occurred:
Q. It's your testimony today that you don't know Detective Sergeant Chard; isn't that true?
A. I never saw Chard before, never.
Q. So when he testified that he has known you
for the past several years, he's lying, he's
not telling the truth?
A. He's lying.
Q. Isn't it true that you passed in a no-passing zone and forcing vehicles off the
road?
A. No, that's another false statement. Never
did that.
Q. So these police are lying?
A. Yes they are.
Q. Well isn't it true that you continued on
and came to a stop, Detective Sergeant Chard -- the other two marked units came to a stop
and then you took off?
A. No, ma'am.
Q. So when Detective Sergeant Chard testified
today, he's not telling the truth; right?
A. No, ma'am, he's not telling the truth.
Q. And down at the station you made a statement to Detective Chard that you recognized him when he was at the Elks Lodge parking lot; didn't you?
A. Never made that statement, never made that
statement at all.
Q. So if that's in his report, and that's
what he testified to today, then, once again,
he's lying and you're telling the truth.
A. Ma'am, he is lying.
This type of cross-examination compels a witness to
characterize the testimony of another witness and is, therefore,
argumentative and highly improper. However, we conclude that the
challenged portions of the cross-examination do not rise to the
level of an error clearly capable of producing an unjust result.
We have reversed the convictions on counts one and two on other
grounds. This is the only challenge to the convictions on counts
three and four on which the evidence of guilt was overwhelming. On
retrial, we direct that this method of cross-examination not be
repeated. Although we agree that the cross-examination was
improper, we also conclude that it was not clearly capable of
producing an unjust result.
In response to our colleague's dissent, we add the following comments. The dissent concludes that since count three only charged defendant with attempting to elude Felice, and that since Felice was not struck and injured on a public street or highway, the evidence of the subsequent chase through city streets and pursuit by officers other than Felice cannot support the conviction. We disagree. In our view, that construction of N.J.S.A. 2C:29-2(b) limiting it to acts of flight on a street or highway is much too narrow. Where, as here, the act of flight begins in a private parking lot and continues uninterrupted onto a public street or highway, that element of the offense is satisfied. Moreover, it is immaterial that the continued flight is from other officers since the officer who initially attempted to stop defendant was lying injured on the parking lot. The chase, initially to elude that officer, was one continuous chase and defendant cannot avoid conviction because the chase was joined by other officers.
One basis for our reversal of the conviction on count two was the failure of the trial judge to instruct the jury on defendant's awareness of the victim's status as a law enforcement officer. The judge's charge on eluding on count three specifically required the jury to find beyond a reasonable doubt that defendant knew Felice was a police or law enforcement officer. Thus, the charge on eluding did not suffer from the same infirmity as the charge on aggravated assault. There is nothing that requires a reversal of the conviction on count three. We also observe that the judge interrupted her charge as soon as she completed her instructions on count three and asked counsel at sidebar if there were any objections to that portion of the charge. Defendant voiced no objection. We perceive nothing illogical or inconsistent in affirming the conviction on count three while reversing the conviction on count two. On count three the jury was clearly and unequivocally instructed that it must find, as one of the elements of the offense, that defendant was aware that the victim was a law enforcement officer. The jury was not so instructed on count two.
Although not raised by defendant on appeal, and not objected to at trial, the trial judge failed to include any reference to count four in her jury instructions. That count charged defendant with violation of N.J.S.A. 2C:12-1(b)(6) which provides, in pertinent part as follows:
A person is guilty of aggravated assault if he causes bodily injury to another person while fleeing or attempting to elude a law enforcement officer in violation of subsection b. of N.J.S. 2C:29-2 .... Notwithstanding any other provision of the law to the contrary, a person shall be strictly liable for a violation of this subsection upon proof of a violation of subsection b. of N.J.S. 2C:29-2 ... which resulted in bodily injury to another person.
The judge merely asked a question on the verdict sheet as to
whether defendant caused bodily injury to Felice while fleeing or
attempting to elude a law enforcement officer. The verdict sheet
was set up as follows:
3(a). ELUDING A LAW ENFORCEMENT OFFICER
THIRD DEGREE
How do you find the defendant, VERNON GREEN,
on or about November 10, 1995 in Millville,
New Jersey, did, while operating a motor
vehicle, knowingly and unlawfully flee or
attempt to elude Det. D. Felice after having
received a signal to stop?
GUILTY NOT GUILTY
If the answer is GUILTY, proceed to 3 (b).
(b) ELUDING A LAW ENFORCEMENT OFFICER
SECOND DEGREE
Did defendant's flight or attempt to elude
create a risk of death or injury to any
person?
YES NO
If you answered "GUILTY" to 3(a), please
answer question no. 4. Otherwise cease
deliberations.
4. Did the defendant, VERNON GREEN, on or
about November 10, 1995 in Millville, New
Jersey, cause bodily injury to Det. D. Felice,
while fleeing or attempting to elude a law
enforcement officer?
YES NO
Apparently a discussion took place in chambers at some time
prior to the charge concerning how to charge count four. However,
there is nothing on the record setting forth what transpired in
chambers. When the judge called counsel to sidebar and asked for
any objections to the charge, the following exchange took place
between the prosecutor and the judge.
The Court: Any objections to the charge?
Prosecutor: No. Did that include the
aggravated assault while eluding? Are you
going to tell them on the verdict sheet?
The Court: It will be on the verdict sheet.
Prosecutor: OK. Is the verdict sheet ready?
The Court: No, it will be. Do you remember,
we talked in chambers, that if they found him
guilty of eluding, they are to go on to this
additional question, which will be did his
conduct cause injury while fleeing or
attempting to elude, and that will cover that
fourth, I think it's the fourth count of the
indictment.
Prosecutor: OK. No objections.
Counsel and the trial judge have a mutual obligation to make
a record and to request and provide for the record a notation of
events occurring in chambers, either by way of actual transcript,
or summarization on the record so that a reviewing court will have
the benefit thereof. Fehnel v. Fehnel, 186 N.J. Super. 209, 217
(App. Div. 1982).See footnote 3 We have no alternative but to deal with the
record as it is presented to us. However, we cannot discern from
this record the reason why the judge decided to merely refer to
count four on the verdict sheet without giving any specific
instructions to the jury regarding that count. We conclude that
the failure to charge on count four was reversible error. A trial
judge must instruct the jury as to the fundamental principles of
law that control each separate charge. State v. Butler,
27 N.J. 560, 595 (1958). Defendant did not object to the failure of the
trial judge to charge the jury regarding count four. In fact,
defendant may have acquiesced in the apparent decision of the trial
judge to permit the jury to return a verdict on count four by
merely answering the question on the verdict sheet. Accordingly,
we must consider the failure to charge on count four in the context
of the plain error rule. R. 2:10-2. We may reverse only if the
unchallenged error is clearly capable of producing an unjust
result.
We conclude that the failure to instruct the jury at all
regarding the offense set forth in count four requires reversal of
the conviction on that count. A verdict sheet is not a substitute
for a verbal instruction from the judge. We understand that the
judge may have determined that a mere reference to the offense on
the verdict sheet would suffice in light of the fact that N.J.S.A.
2C:12-1(b)(6) imposes strict liability upon a defendant who causes
bodily injury to another person while fleeing or attempting to
elude a law enforcement officer in violation of N.J.S.A. 2C:29-2(b). We so infer in light of the fact that the judge had already
charged the jury on a violation of N.J.S.A. 2C:29-2(b) when
charging count three and had already charged the jury on the
concept of bodily injury when charging count two. Nevertheless, we
conclude that essential to a fair trial was guidance from the trial
judge by way of specific instructions on count four that, at the
very least, referred to her prior instructions on eluding a police
officer and bodily injury, and required the jury to deliberate anew
on count four. Accordingly, we reverse the conviction on count
four.
In light of our reversal of the conviction on counts one, two and four, it is unnecessary to consider defendant's next contention that the conviction under count four should have merged with the conviction under count one. However, we note that the State concedes that the two convictions should have merged.
Finally, we conclude that defendant's argument regarding the sentence imposed is without merit, and we reject it. See R. 2:11-3(e)(1). However, we observe that the State may move for resentencing on count three, since defendant has no reasonable expectation of finality in the sentence imposed on convictions he is appealing. See State v. Rodriguez, 97 N.J. 263 (1984).
Affirmed in part, reversed and remanded in part for further proceedings consistent with this opinion.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-825-97T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
VERNON GREEN,
Defendant-Appellant.
KLEINER, J.A.D., concurring in part, dissenting in part.
In the majority opinion, my colleagues have concluded that
defendant's conviction on counts one, two, and four of the
indictment must be reversed thus entitling defendant to a new
trial on those counts. The majority would affirm defendant's
conviction on count three. Although I agree with the majority
opinion as to counts one, two, and four, essentially for the
reasons therein expressed, I respectfully dissent as to
defendant's conviction on count three.
Count three of the indictment charged defendant with a violation of N.J.S.A. 2C:29-2(b). The statute, in pertinent part, provides:
Any person, while operating a motor vehicle on any street or highway in this State . . . who knowingly flees or attempts to elude any police or law enforcement officer after having received any signal from such officer to bring the vehicle . . . to a full stop commits a crime of the third degree; except that, a person is guilty of a crime of the second degree if the flight or attempt to elude creates a risk of death or injury to any person.
[(Emphasis added).]
Count three of the indictment charged defendant:
did knowingly and unlawfully flee in a motor
vehicle or did knowingly and unlawfully
attempt to elude a law enforcement officer,
to wit, Det. D. Felice of the Millville
Police Department, while operating a motor
vehicle, after having received a signal from
said officer to bring the vehicle to a full
stop . . . .
[(Emphasis added).]
Each count of the indictment identified Detective D. Felice
as the victim. As the majority has noted, Detective D. Felice
was injured on the Elks parking lot. Defendant's vehicle had
entered the parking lot and stopped by a telephone booth.
According to the majority:
Felice testified that all three detectives
exited the undercover vehicle. Felice
approached the driver's side, identified
himself as a police officer, displayed his
badge and told defendant he would like to
speak to him. Felice claimed that as he
displayed his badge defendant put his vehicle
in reverse and "peeled" backward quickly.
Felice asserted he was twelve to eighteen
inches from defendant's vehicle when he
displayed his badge. Felice testified that
he ran after the car, shouting "police, stop
the car, Vernon, stop the car".
Nevertheless, defendant drove forward and the
vehicle struck Felice in the left leg.
Felice continued to run alongside defendant's
car and punched his right hand through the
driver's side window, shattering the window
and cutting his hand. According to Felice he
was attempting to gain entry into the vehicle
to shut the ignition off. With the window
broken, Felice testified that he continued
shouting to defendant "police, stop the car,
Vernon". Defendant's vehicle was moving
quickly and Felice rolled off onto the
ground.
Here, the trial judge properly asked the jury to consider both
second-degree and third-degree eluding. As part of her charge
the judge stated:
In order to convict the defendant of third-degree eluding, the State must prove beyond a
reasonable doubt each of the following six
elements: Number 1, that Vernon Green was
operating a motor vehicle on a street or
highway in this state; number 2, that
Detective Felice was a police or law
enforcement officer; number 3, that Mr. Green
knew that Detective Felice was a police or
law enforcement officer; number 4, that
Detective Felice signaled Mr. Green to bring
the vehicle to a full stop; number 5, that
Mr. Green knew that the officer had signaled
him to bring the vehicle to a full stop;
number 6, that defendant fled or attempted to
elude the officer.
[(Emphasis added).)]
All of the evidence involving Detective Felice occurred on the
Elks parking lot. Felice offered no evidence as to defendant's
manner in operating his motor vehicle after leaving the parking
lot. The judge's charge specifically directed that the first
element which the State must prove beyond a reasonable doubt was
the operation of a motor vehicle by defendant on a public street
or highway. Although the evidence offered by the State as to
defendant's operation of his motor vehicle after leaving the Elks
parking lot might reasonably have resulted in a charge of eluding
a police officer, particularly after marked police vehicles
sounded their sirens and flashed their lights in pursuit of
defendant, defendant was not so charged in the third count of the
indictment. Even if the third count of the indictment could be
interpreted to include other police officers, the judge did not
charge the jury in accord with a broadened interpretation of the
language embodied in the third count of the indictment.
In Part "D" of the majority opinion, we conclude that the trial judge erred in failing to charge a lesser-included offense of simple assault in light of defendant's contention that "he was unaware that Felice and the other detectives were law enforcement officers acting in the performance of their duties."
Having reached that conclusion, I conclude that the same rationale requires a similar charge on count three of the indictment and its omission constitutes plain error which necessitates reversal and a new trial. If the jury should have been charged that defendant might not have known that Felice was a law enforcement officer acting in the performance of his duties when he assaulted Felice, then the jury was entitled to be charged that the absence of that knowledge would negate his knowingly "leaving or attempting to elude any police or law enforcement officer after having received any signal from such officer to bring the vehicle . . . to a complete stop . . . ." N.J.S.A. 2C:29-2(b).
In both counts two and three, defendant's conduct vis-a-vis Felice was in issue. We have concluded if defendant did not know Felice was an officer, his attempt to assault Felice would constitute simple assault. Likewise, if defendant did not know Felice was a police officer, defendant simply failed to stop his motor vehicle in response to a signal given by an unknown stranger. Having concluded that defendant's conviction on count two must be reversed because of the failure in the judge's charge, I would conclude that defendant's conviction on count three must likewise be reversed.
For the two reasons expressed, I would reverse defendant's conviction on count three and would remand all counts of this indictment for a new trial.
Footnote: 1Since N.J.S.A. 2C:12-1(b)(5)(a) does not expressly require scienter there is no prescribed requirement of culpability. We conclude that the Legislature could not have intended the prescribed culpability to be either purposeful, knowing or reckless. See N.J.S.A. 2C:2-2(c)(1). Rather, we conclude that the requirement of culpability must be knowingly. See N.J.S.A. 2C:2-2(c)(3) cf. State v. Parsons, supra, 270 N.J. Super. at 224 (prescribed requirement of culpability is reckless; State v. Moll, supra, 206 N.J. Super. at 260 (since the word "purposefully" was used in the indictment to prescribe the requirement of culpability insofar as causing bodily injury the State must also prove beyond a reasonable doubt that defendant was aware of the attendant circumstances that the victim was a law enforcement officer acting in the performance of his duties while in uniform or exhibiting evidence of his authority). Footnote: 2We believe the Model Jury Charge for N.J.S.A. 2C:12-1(b)(a) should be modified to add a requirement for scienter. Accordingly, we refer this concern to the Committee on Model Jury Charges, Criminal, for further consideration. Footnote: 3In fact, effective September 1, 1994, R. 1:8-7 was amended to include (b) which requires the trial judge, in all criminal cases, to conduct a charge conference on the record.