SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-2483-91T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
BENNY HOGAN,
Defendant-Appellant.
Argued March 29, 1995 - Decided May 9, 1995.
Remanded by New Jersey Supreme Court June 17, 1996.
Resubmitted December 3, 1996 - Decided January 24, 1997
Before Judges Muir, Jr., Kleiner and Coburn.
On appeal from the Superior Court of
New Jersey, Law Division, Hudson County.
Susan L. Reisner, Public Defender, attorney for
appellant (Ruth Bove Carlucci, Assistant Deputy Public
Defender, of counsel and on the brief).
Carmen Messano, Hudson County Prosecutor, attorney for
respondent (Timothy Moriarty, Assistant Prosecutor, on
the brief).
The opinion of the court was delivered by
KLEINER, J.A.D.
Defendant Benny Hogan was indicted on January 12, 1990, for
robbery and burglary allegedly committed on August 29, 1989.
Thereafter, on August 15, 1990, a Hudson County grand jury
returned a superseding indictment charging defendant with the
following crimes: armed robbery, contrary to N.J.S.A. 2C:15-1
(count one); robbery, contrary to N.J.S.A. 2C:15-1 (count two);
burglary while displaying a deadly weapon, contrary to N.J.S.A.
2C:18-2 (count three); burglary, contrary to N.J.S.A. 2C:18-2
(count four); aggravated assault, contrary to N.J.S.A. 2C:12-1b(4) (count five); unlawful possession of a handgun, contrary to
N.J.S.A. 2C:39-5b (count six); and possession of a weapon for an
unlawful purpose, contrary to N.J.S.A. 2C:39-4 (count seven).
Defendant was found guilty of all counts except count five.
After defendant's motions for judgment notwithstanding the
verdict and a new trial were denied, the trial court determined
that defendant was eligible for an extended term. The court
sentenced defendant to a custodial term of fifty years with a
sixteen and two-third year period of parole ineligibility on
count one and a concurrent term of fifteen years with a five-year
period of parole ineligibility on count three. Counts two, four,
six, and seven were merged into counts one and three.
In defendant's initial appeal, he raised nine points of
error:
POINT I
THE TRIAL COURT COMITTED [SIC] REVERSIBLE
ERROR IN DENYING THE DEFENDANT'S PRE-TRIAL
MOTION TO DISMISS THE INDICTMENT.
POINT II
THE TRIAL COURT COMITTED [SIC] REVERSIBLE
ERROR IN DENYING THE DEFENDANT'S MOTION FOR
MISTRIAL AFTER THE PROSECUTOR'S OPENING
STATEMENT.
POINT III
THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN
FIRST, RESERVING ON, AND THEN DENYING, THE
DEFENDANT'S MOTION WITH RESPECT TO THE
UNAUTHENTICATED PIECE OF PAPER WHICH THE
PROSECUTOR SOUGHT TO PRESENT TO THE JURY.
POINT IV
THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN
PERMITTING THE PROSECUTOR TO NEUTRALIZE HIS
OWN WITNESS (NOT RAISED BELOW).
POINT V
THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN
PERMITTING THE PROSECUTOR TO (1) ALLUDE TO
THE DEFENDANT'S PRIOR CRIMINAL RECORD (2)
ELICIT HEARSAY AND (3) LEAD THE WITNESS.
POINT VI
THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN
FAILING TO ATTEMPT MORE DILIGENTLY TO
ELIMINATE THE PREJUDICE BY ADEQUATELY
CHARGING THE JURY.
POINT VII
THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN
DENYING THE DEFENDANT'S MOTIONS FOR A
JUDGMENT OF ACQUITTAL NOTWITHSTANDING THE
VERDICT OR, IN THE ALTERNATIVE, A NEW TRIAL.
POINT VIII
ASSUMING, ARGUENDO, THAT THE INDIVIDUAL
ERRORS DO NOT CONSTITUTE REVERSIBLE ERROR,
THE ERRORS AGGREGATELY DENIED THE DEFENDANT A
FAIR HEARING.
POINT IX
THE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE
OF COUNSEL.
In our opinion, State v. Hogan,
281 N.J. Super. 285 (App.
Div. 1995), we reversed predicated solely on point one of
defendant's appeal. We therefore concluded that we had no need
to address the remaining points of error. We stayed our decision
to permit the State the opportunity to seek certification, which
was granted.
142 N.J. 458 (1995). Our decision was reversed,
144 N.J. 216 (1996), and defendant's appeal was remanded for
consideration of the remaining points of error.
On defendant's motion, we granted defendant leave to file a
supplemental brief, to which the State has responded. In his
supplemental brief, defendant raises five points of error:
POINT I
REFERENCES TO DEFENDANT HAVING BEEN IN PRISON
BEFORE THE COMMISSION OF THE INSTANT OFFENSE,
IN COMBINATION WITH THE PROSECUTOR'S
REFERENCE IN HIS OPENING STATEMENT TO THE
FACT THAT MS. DAYE IDENTIFIED DEFENDANT'S
PHOTOGRAPH AT THE "BUREAU OF CRIMINAL
IDENTIFICATION," AND GRATUITOUS TESTIMONY
CONCERNING DEFENDANT BEING CONSIDERED "ARMED
AND DANGEROUS" WHEN LATER ARRESTED, VIOLATED
EVID. R.
55 AND 4. THE JUDGE'S FAILURE TO
GIVE ANY CURATIVE OR LIMITING INSTRUCTIONS
WHATSOEVER COMPOUNDED THESE ERRORS, REQUIRING
REVERSALS OF DEFENDANT'S CONVICTIONS.
POINT II
THE PROSECUTOR'S CONDUCT DURING TRIAL
EXCEEDED THE BOUNDS OF PROPRIETY BY
COMMENTING ON MATTERS NOT IN EVIDENCE,
BLATANTLY MISCHARACTERIZING THE TESTIMONY,
ELICITING INADMISSIBLE EVIDENCE, AND ACCUSING
DEFENSE COUNSEL OF MISCONDUCT, THEREBY
DEPRIVING THE DEFENDANT OF HIS DUE PROCESS
RIGHT TO A FAIR TRIAL. (U.S. CONST. AMEND.
XIV; N.J. CONST. (1947) ART. I, PAR. 10)
POINT III
THE TRIAL COURT'S INSTRUCTIONS WITH REGARD TO
ACCOMPLICE LIABILITY WERE PREJUDICIALLY
DIRECTIVE. (Not Raised Below)
POINT IV
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S
MOTION FOR A NEW TRIAL BECAUSE HIS
CONVICTIONS WERE AGAINST THE WEIGHT OF THE
CREDIBLE AND ADMISSIBLE EVIDENCE.
POINT V
THE EXTENDED TERM SENTENCE IMPOSED IN THIS
CASE IS MANIFESTLY EXCESSIVE AND MUST BE
REDUCED.
Because our original opinion and the Supreme Court decision
fully discuss the underlying criminal events which led to
defendant's initial indictment and the superseding indictment, we
have no reason to repeat them with particularity. We note,
however, that other than the investigating police officers, the
State's entire case was predicated upon the factual rendition of
the events as remembered by the victim, Elnora Daye. Prior to
the superseding indictment, Daye recanted her previous version of
those events, which she had provided to the police on the
afternoon following armed robbery. Thereafter, Daye retracted
her recantation.
Evidence of Daye's recantation and the reasons which caused
her to recant were fully explored at defendant's trial.
Additionally, the State elicited from Daye her explanation as to
the retraction of her recantation. Suffice it to say that the
State's case cannot be categorized as a particularly strong one,
as it was based solely on the credibility of the victim.
Defendant contends that prosecutorial error requires a reversal of his conviction. In considering that contention, we are aware that "[p]rosecutorial misconduct is not ground for reversal of a criminal conviction unless the conduct was so egregious that it deprived defendant of a fair trial." State v. Ramseur, 106 N.J. 123, 322 (1987), cert. denied, 508 U.S. 947, 113 S. Ct. 2433, 124 L. Ed.2d 653 (1993). See also, State v. Bucanis, 26 N.J. 45, cert. denied, 357 U.S. 910, 78 S. Ct. 1157, 2 L. Ed.2d 1160 (1958), which concluded:
[N]ot every suspected deviation from perfection on the part of a prosecutor will justify a reversal of a conviction. . . . [H]is infraction must be clear and unmistakable and must substantially prejudice the defendant's fundamental right to have the jury fairly evaluate the merits of his defense.
[Bucanis, supra, 26 N.J. at 56.]
For the reasons hereafter discussed, we conclude that the
prosecutor's comments in his opening statement were sufficiently
egregious that, when viewed in light of the State's entire case,
which we have described as essentially weak, and the trial
judge's refusal to give a curative instruction, defendant was
denied a fair trial.
On the day following the alleged criminal episode, the victim, Elnora Daye, gave a written statement to the police that
led to defendant's arrest. That statement included the
following:
I was coming out of 8 Erie Street. I
got out of my car in front of my house. I
noticed one of the guys who robbed me. I
went to a man who just got out of prison and
the man knew him. So we went up to him and
asked him questions about the incident.
At defendant's trial, during his opening statement, the
prosecutor related those facts, which he intended to present at
trial, and stated:
Later on that day, she's with another
man on the street and she sees the car again.
This other man had been in prison. She tells
the police that this man that she knew also
knows Mr. Hogan and said, that's Benny Hogan
in the car. That's how she got the name of
Mr. Hogan.
Then she is called back to the police
station by the Detectives. . . . She's taken
from the station to B.C.I., which is the
Bureau of Criminal Identification, where they
have photographs. She tells the police the
general description, height and weight.
She's shown photographs of black males. . . .
She picks out Benny Hogan's photograph .
. . .
According to the victim's statement, she was shown another
series of photographs and selected a second photograph of Hogan.
The prosecutor also referred to this second photograph selection
during his opening statement.
Based on those comments, defendant's counsel, at side bar,
requested a mistrial. Counsel contended that the prosecutor was
purposefully implying that defendant had a prior criminal record.
The motion was denied.
Viewed in isolation, we cannot clearly state that the trial
judge erred in denying the motion for a mistrial. A mistrial
motion is granted only when the trial court finds that as a
result of error manifest injustice would result from continuation
of the trial. See R. 3:20-1; State v. LaPorte,
62 N.J. 312, 318-19 (1973); State v. DiRienzo,
53 N.J. 360, 383 (1969); State v.
Hubbard,
123 N.J. Super. 345, 351 (App. Div.), certif. denied,
63 N.J. 325 (1973). The court must also consider whether the error
might be cured by a cautionary instruction or other curative
steps. State v. Winter,
96 N.J. 640, 646-48 (1984). In
addition:
The decision on whether inadmissible
evidence is of such a nature as to be
susceptible of being cured by a cautionary or
limiting instruction, or instead requires the
more severe response of a mistrial, is one
that is peculiarly within the competence of
the trial judge, who has the feel of the case
and is best equipped to gauge the effect of a
prejudicial comment on the jury in the
overall setting.
[Id. at 646-47.]
The trial court's decision is granted great deference on appeal.
Unless manifest injustice would result, the trial court's
decision will be affirmed. State v. Labrutto,
114 N.J. 187, 207
(1989).
Here, although the prosecutor's comment relating how the
victim learned defendant's name might imply that defendant had a
prior criminal record, it did not clearly make reference to a
prior criminal record. The subtlety of the comment was perhaps
more obvious to defendant's counsel, who obviously knew of
defendant's prior record. In our opinion, the trial judge, once
she had been alerted to the possible inference should have
provided the jury with a cautionary instruction. The trial
judge, however, merely denied the mistrial motion and said
nothing to the jury.
The trial judge also failed to react to defendant's
objection to the multiple references to the Bureau of Criminal
Identification (B.C.I.). The victim's statement specifically
indicated that she had been taken from the police station to
B.C.I. The prosecutor stressed this fact to the jury. Clearly,
the jury could infer that there is a difference between a police
station and B.C.I. and could infer that photographs that might be
available to the police at the police station are somewhat
different from photographs available at B.C.I. Here again, the
judge denied defendant's mistrial motion and refused to give any
immediate cautionary instruction to the jury. In fact, the trial
judge indicated at side bar that she had not even heard the
reference to B.C.I. Four days later, at the close of the entire
case, in her general charge to the jury, the judge stated:
Now, there is evidence that a photograph
was used to identify the Defendant in this
case. When you refer to the photograph
submitted into evidence, you will note that
that [sic] it has been taken by the police.
However, this picture indicates merely that
it has been taken by the police in a standard
manner. You are not to consider the fact
that this is a police photograph as
prejudicing this this [sic] Defendant in any
way. The photograph is not evidence that the
Defendant has ever been convicted or even
been arrested for any crime and is not to be
considered as such by you.
The fact that the police have in their
possession a photograph of this Defendant
does not mean that the subject has a criminal
record. Such photographs come into the hands
of the police for many reasons, such as
licenses, permits, passport applications and
other reasons and therefore is wholly
unconnected with criminal activity.
Although the instruction incorporated the language from the
Model Jury Charge, Criminal which is generally used in criminal
trials where police photographs have been presented as a part of
the identification process, the charge as given failed to make
special mention of the B.C.I. The instruction also failed to
eradicate the inferences that might be drawn from the difference
between regular photographs, available to the police at a police
station, and photographs maintained at the Bureau of Criminal
Identification.
The need for a special limiting instruction and a re-evaluation by the trial judge of her prior denial of defendant's
mistrial motion is most apparent from the testimony elicited from
the victim as part of the State's case. That testimony included
the following:
Q. Where did you learn the name Benny
Hogan?
A. From a man who was in prison before
with him.
Q. But had you seen that man yet?
A. Yes.
Q. I'm confused here.
A. I was outside and I noticed the car. I
was talking to somebody who was in prison and
they said, oh, that's Benny Hogan.
MR. SONNTAG: Objection to the substance
of the conversation.
THE COURT: You can't tell us what
somebody else told you. That's hearsay. You
can certainly answer the question that you
had a conversation with someone.
Mr. Moriarty, you may ask her,
certainly, as a result of that conversation
in terms of what she may have learned, you
should fashion those questions so they don't
elicit hearsay.
Clearly, whatever the substance of the
conversation was, that's hearsay. However,
she can testify to having that conversation
and what she may have done as a result of it.
[(Emphasis added).]
Although the judge did address defendant's hearsay
objection, the judge did not give a limiting instruction on the
victim's reference to the fact that defendant had been in prison.
We realize that defendant's counsel did not again request a
mistrial. Yet, the importance of the victim's testimony,
particularly after the prosecutor's opening statements and his
unnecessary emphasis on the photographic identification at the
B.C.I., should have alerted the trial judge to reconsider her
prior denial of defendant's mistrial motion, sua sponte or, at
the very least, to craft a particularized special curative
instruction to ameliorate the harmful effect that testimony would
have upon defendant.
The prosecutor's opening statement did not directly address
defendant's criminal record as in State v. Johnson,
65 N.J. 388,
391-92 (1974). Nor did it rise to the level of egregious conduct
as discussed in State v. Eason,
138 N.J. Super. 249, 258-59 (App.
Div. 1975) (reversing defendant's conviction where prosecutor
used defendant's prior criminal record to "show that he was prone
to committing crimes of violence."). The prosecutor's subtle
comments, however, became significantly more important in light
of the victim's testimony, which was different from the statement
that she gave to the police on the day after the crime.
The judge did not sua sponte pause to provide a cautionary
instruction or even consider calling a recess to contemplate the
serious implications of the victim's testimony on defendant's
right to a fair trial. The record clearly establishes, however,
that the trial judge was substantially troubled by the entire
course of the trial. This is quite evident from a colloquy on
the record that occurred during jury deliberations.
During its deliberations, the jury requested that the
victim's testimony about her encounter with defendant on the day
following the crime be read back. In considering how and to what
extent the requested re-reading of the victim's testimony might
have, the trial judge stated:
Now, I've been somewhat concerned about
the various references that we've had in this
case and it came out first here, to the best
of my recollection, in the direct
examination, certainly not by virtue of the
Prosecutor, but that's -- basically, she sort
of blurted that out.
Now, at the time, I'm not sure that the jury even heard because she was talking rather low. I was right next to her here and I'm not sure they heard the reference that she made to this man who told her about knowing him from prison. Clearly, the whole thing was hearsay, certainly, as we know and it was allowed. There was no objection, but
I was hoping that was going to be the end of
that. It was highly prejudicial. (Emphasis
added)
Moments later, the judge realized that the defendant had in fact
objected. The judge then stated:
The Court indicated on the record that this
witness could not tell us about a
conversation that took place because it was
hearsay. Basically, I sustained that
objection, so the question and that answer in
my opinion are not part of this record and
should not be considered as admissible.
Clearly it was hearsay.
Although the trial judge had sustained the objection, she
added no additional comment to her ruling and failed to explain
precisely to the jury why the testimony should not be considered
for any purpose during jury deliberations. Nor did she make any
further reference to the improper testimony during her charge to
the jury.
The trial judge did monitor the portion of the testimony
that was re-read to the jury in an effort to avoid a re-reading
of that portion of the victim's testimony which unquestionably
indicated that defendant had been in prison on a prior occasion.
Yet, even here, the judge's misgivings were prominent.
When the prosecutor argued that the reference to defendant
having been in prison should be repeated during the read back,
the judge responded:
Well, I don't believe if that's what
they're considering, if that's what it is,
then it's highly prejudicial. I should
strike this whole trial, if they would
convict Mr. Hogan because he was in prison
before. Then this whole trial is a sham.
[emphasis added.]
Despite the judge's misgivings, and although she did monitor
the exact read back, it is quite apparent that substantial
prejudice to defendant's right to fair trial had occurred and had
not been rectified by judicial action.
One additional point has been raised by defendant that has some bearing upon our conclusion. Subsequent to the victim's identification of defendant at B.C.I., the police were attempting to locate defendant. He was actually arrested without incident that same night. The arresting officer, who was not otherwise involved in the investigation of this alleged crime, was called as a witness. The officer was asked to describe how the defendant was placed under arrest. The officer responded: "I came out, held him at gunpoint as he was considered armed and dangerous." (Emphasis added). Although defendant objected immediately, the judge indicated that the prosecutor had not erred but did strike the words "armed and dangerous" from the record. Yet, in the prosecutor's summation, the prosecutor reminded the jury that during defendant's arrest, the arresting officer was required to use his gun. Naturally, the summation preceded the jury question which requested a read back of the victim's testimony. We think that the prosecutor's comment, despite the judge's ruling as to "armed and dangerous," when read with the prosecutor's opening statements and when placed in an
equation encompassing the victim's testimony, both on the
identification issue, and referencing defendant's prior prison
sentence, as a whole deprived defendant of a fair trial.
N.J.R.E. 404(b) provides in pertinent part that "[e]vidence of
other crimes, wrongs or acts is not admissible to prove the
disposition of a person in order to show that he acted in
conformity therewith," but such evidence "may be admitted for
other purposes . . . when such matters are relevant to a material
issue in dispute."
The dangers of admitting evidence of other crimes has
recently been reviewed by the Supreme Court in State v. G.S.,
145 N.J. 460 (1996). The Court noted:
There is an unavoidable tension inherent
in other-crime evidence. The evidence of
other crimes invariably is both probative and
prejudicial. State v. Stevens,
115 N.J. 289,
300 (1989). The prejudice of other-crime
evidence is its tendency to demonstrate a
criminal predisposition; therefore, it poses
a distinct risk that it will distract a jury
from an independent consideration of the
evidence that bears directly on guilt itself.
Id. at 302.
[Id. at 468.]
The Court additionally stressed:
The narrow issue, which divided the
Appellate Division, is whether, as a result
of the trial court's instructions, the use of
that evidence by the jury was improper and
prejudicial. Recognizing the special dangers
posed by the conflicting impacts of other-crime evidence, this Court has required that
when a trial court admits such evidence, the
court must specifically instruct the jury
about that evidence's limited relevance.
[Id. at 469 (emphasis added).]
The absence of any special instructions, curative comments,
or any specific discussion with the jury, when coupled with the
overall weakness of the State's case, highlight our perception of
trial error and form the basis of our conclusion that defendant
was deprived of a fair trial.
Although the specifics of defendant's prior criminal record
were not admitted into evidence, the prosecutor clearly alluded
to a prior record in his opening statement. The victim's
statement to the police leading to defendant's identification
also referenced to prior criminal involvement. Those references
became more significant when coupled with the subsequent
references to photographs in the B.C.I., which was stressed by
the prosecutor. The reference, of course, is magnified by the
victim's trial testimony specifically indicating that defendant
had been in prison, and by the arresting officer's comments that
he was required to draw his gun when defendant was arrested, in
the absence of any other elicited testimony which would explain
why a gun was needed in defendant's arrest. Contrary to the
above-cited case law, all of this evidence was admitted without
any special instruction to the jury. See, e.g., State v. G.S.,
supra, 145 N.J. at 469; State v. Oliver,
133 N.J. 141 (1993);
State v. Cofield,
127 N.J. 328 (1992); Stevens, supra,
115 N.J. 289; State v. Cusick,
219 N.J. Super. 452, 467 (App. Div.),
certif. denied,
109 N.J. 54 (1987).
The references to defendant's prior record coupled with the
absence of any curative instruction, require a new trial. As we
noted in State v. Taplin,
230 N.J. Super. 95 (App. Div. 1989):
Our courts have always recognized the
inordinate capacity for prejudice to a
defendant which inheres in the jury's
knowledge that he has already been convicted
of a criminal charge. Indeed, a previously
convicted defendant's decision not to testify
on his own behalf is typically motivated . .
. at least in substantial measure, by his
desire to keep his prior record out of
evidence . . . . Defendant here obviously
chose not to testify for that reason . . . .
Just as obviously, by making that choice, he
accepted the risks implicit in foregoing the
opportunity to tell an exculpatory story. It
was his right to do so and thereby to
foreclose the State's right to admit his
prior record for impeachment purposes.
Clearly, when a defendant does not
testify, the State cannot, in the ordinary
circumstance, refer to his criminal record.
If proof is nevertheless adduced which
permits the jury to infer that he has a
criminal record, defendant cannot but be
prejudiced and, in effect, be deprived of the
benefit he anticipated in deciding not to
testify.
[Id. at 98-99 (emphasis added).]
Although defendant requested a mistrial, and although defendant
entered certain objections which were in part overruled, other
aspects of the error we have culled from the record were not
specifically objected to by defendant, and more specific
instructions to the jury or a request for cautionary instructions
were not requested with absolute clarity. Thus, the issue of
error is best addressed by us as one of plain error. See R.
2:10-2. Plain error is reversible if it is "clearly capable of
producing an unjust result." R. 2:10-2. See also R. 1:7-2. The
test is whether the possibility of injustice is "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 (1971). We conclude that the errors we have
discussed, cumulatively, clearly raise such a reasonable doubt.
Unquestionably, cumulative effects of errors can render a trial
unfair. See State v. Orecchio,
16 N.J. 125 (1971). As noted by
the Supreme Court:
Where . . . the legal errors are of such
magnitude as to prejudice the defendant's
rights or, in their aggregate have rendered
the trial unfair, our fundamental
constitutional concepts dictate the granting
of a new trial before an impartial jury.
[Id. at 129.]
We therefore reverse defendant's conviction and remand for a new
trial.
Defendant's supplemental brief included sixteen and one-half pages that meticulously reviewed the prosecutor's acts which he contends constitutes prosecutorial misconduct. In response, the State has offered a lengthy explanation for each of the prosecutor's allegedly improper acts.
In most instances, the actions of the prosecutor drew appropriate objections from the defendant and resulted in appropriate rulings by the judge. We have already cited the most egregious conduct of the prosecutor and the most blatant errors
of the trial judge as reasons for the reversal of defendant's
conviction. Those errors discussed in Part I of this opinion
deprived defendant of a fair trial.
Since this matter must be retried, we are satisfied that
prior to the re-trial each trial counsel will re-read the entire
record of the initial trial, but will, or should, also read the
respective appellate briefs, both as originally filed and as
supplemented, to discern those areas of criticism voiced by
adverse counsel. We discern no specific purpose to parse the
entire trial record to comment on every alleged impropriety.
We need only remind the prosecutor that Canon 5 of the
Canons of Professional Ethics provides that "[t]he primary duty
of a lawyer engaged in public prosecution is not to convict, but
to see that justice is done." See also State v. Farrell,
61 N.J. 99, 104-05 (1972) (citing Berger v. United States,
295 U.S. 78,
88,
55 S. Ct. 629, 633,
79 L. Ed. 1314, 1321 (1935)).
Canon 5, when read in conjunction with Ramseur, supra, 106
N.J. at 322, and Bucanis, supra, 26 N.J. at 46, should serve as a
reminder that a conviction will be reversed for egregious
prosecutorial conduct that deprives a defendant of a fair trial.
On retrial, the presiding judge must charge the jury, as the trial judge did in this case, with both first and second degree robbery. Defining robbery in each degree and discussing the concepts of accomplice liability is insufficient and plain error,
however, when the trial judge omits reference to the precepts
enunciated in State v. Fair,
45 N.J. 77, 95 (1965), to the effect
that an accomplice may be guilty of a crime of a different degree
than the principal. When lesser-included offenses are submitted
to the jury, as was done in this case, it is error when the trial
judge fails to "carefully impart to the jury the distinctions
between the specific intent required for the grades of the
offense." State v. Weeks,
107 N.J. 396, 410 (1987). Accord
State v. Bielkiewicz,
267 N.J. Super. 520 (App. Div. 1993). The
impropriety in the jury charge itself constitutes plain error
requiring a reversal of defendant's conviction. See R. 2:10-2.
See also State v. Martin,
119 N.J. 2, 15 (1990), and the
decisions cited therein.
Because we have concluded that defendant is entitled to a new trial, we have no reason to discuss defendant's contentions raised in points four and five of his brief.
Reversed and remanded for a new trial.