(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for
the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not have been summarized).
Argued May 4, 1999 -- Decided June 22, 1999
COLEMAN, J., writing for a unanimous Court.
Under the New Jersey Code of Criminal Justice, a person commits the crime of second-degree
eluding if while operating a motor vehicle he or she "knowingly flees or attempts to elude any police or law
enforcement officer . . . [and] the flight or attempt to elude creates a risk of death or injury to any person."
N.J.S.A. 2C:29-2b. This appeal requires resolution of a conflict between panels in the Appellate Division
over whether the term "injury" must be defined when instructing a jury in a second-degree eluding case.
In the evening of October 15, 1994, two Paterson police officers on routine patrol in a marked
vehicle were dispatched to locate a blue Honda driven by an African-American later identified as Wayne
Wallace. The reason for the dispatch is not disclosed in the record. While proceeding to the location, the
officers passed the blue Honda going in the opposite direction. They turned around and activated their lights
and siren in an unsuccessful attempt to stop Wallace.
Wallace attempted to evade the officers, who pursued him for thirteen or fourteen city blocks.
During the pursuit, Wallace drove through six stop signs without stopping, drove on the wrong side of the
street, and drove the wrong way down a one-way street. He also threw a handgun out of the window of the
Honda, which was later recovered and found to be loaded with hollow-point bullets. Wallace stopped his
vehicle only after his path was blocked by three other police cars.
Wallace was charged with second-degree eluding, weapons offenses, and violations of several motor
vehicle statutes, including careless driving. A jury found him guilty. He was sentenced to an aggregate term
of eight years imprisonment. The Appellate Division merged certain convictions with the second-degree
eluding conviction, and otherwise affirmed. It rejected Wallace's contention that the trial court's failure to
instruct the jury on the meaning of the word "injury" was reversible error. The Appellate Division concluded
that the phrase "injury to any person" was clear and included injury risks of all types.
The Supreme Court granted Wallace's petition for certification.
HELD: In a second-degree eluding case, the jury must be instructed that the term "injury" means bodily
injury.
1. The Appellate Division's decision is inconsistent with State v. Dorko,
298 N.J. Super. 54, 58 (App. Div.),
certif. denied,
150 N.J. 28 (1997), which held that because the term "injury" was an element of the offense of
second-degree eluding, it must be defined for the jury. The history of the eluding offense and a
contemporaneous amendment adopted in 1993 suggest that the Legislature intended to restrict the injury or
risk of injury to physical injury. Unless a jury is told this, it could convict because of the risk of nonphysical
or psychological injury. (pp. 5-8)
2. In this case, however, the failure to define the term "injury" for the jury was harmless error. The eluding
statute provides that there shall be a permissive inference that the flight or attempt to elude creates a risk of
death or injury if the defendant is found to have violated one or more of the motor vehicle laws. This case
was tried on that theory. The trial court properly instructed the jury in respect of the permissive inference
and defendant was properly convicted of violating several motor vehicle offenses. (pp. 8-11)
3. Even if the statutory permissible inference is unavailable, the State need not prove that some member of
the public was in the vicinity of the chase caused by the eluding vehicle. The eluding statute was intended to
protect all persons, including police officers chasing the vehicle and any persons in the eluding vehicle, as
well as any people who could potentially be exposed to injury or death along the chase route. (pp. 11-12)
Judgment of the Appellate Division is AFFIRMED.
CHIEF JUSTICE PORITZ, and JUSTICES HANDLER, POLLOCK, O'HERN, GARIBALDI, and
STEIN join in JUSTICE COLEMAN's opinion.
SUPREME COURT OF NEW JERSEY
A-
46 September Term 1998
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
WAYNE WALLACE,
Defendant-Appellant.
Argued May 4, 1999 -- Decided June 22, 1999
On certification to the Superior Court,
Appellate Division, whose opinion is reported
at
313 N.J. Super. 435 (1998).
Ruth Bove Carlucci, Assistant Deputy Public
Defender, argued the cause for appellant
(Ivelisse Torres, Public Defender, attorney).
Robert H. Corrado, Assistant Prosecutor,
argued the cause for respondent (Ronald S.
Fava, Passaic County Prosecutor, attorney).
Janet Flanagan, argued the cause for amicus
curiae, Attorney General of New Jersey (Peter
Verniero, Attorney General, attorney).
The opinion of the Court was delivered by
COLEMAN, J.
Under the New Jersey Code of Criminal Justice (Code), a
person commits the crime of second-degree eluding, if while
operating a motor vehicle on any street or highway in this State,
the operator "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 . . .
[and] the flight or attempt to elude creates a risk of death or
injury to any person." N.J.S.A. 2C:29-2b. This appeal requires
us to resolve a conflict between panels in the Appellate Division
over whether the term "injury" in N.J.S.A. 2C:29-2b should be
defined when instructing a jury in a second-degree eluding case.
We hold that the term must be defined.
On October 15, 1994, at approximately 10:45 p.m., Paterson
police officers Brian DeProspo and Orlando Robinson were in
uniform and on routine patrol in a marked police vehicle. Based
on information received from Police Officer Diaz, the police
radio dispatcher, Officers DeProposo and Robinson proceeded to
the vicinity of East 23rd Street in Paterson. For reasons not
disclosed in the trial record, the radio dispatcher directed the
officers' attention to a blue Honda driven by an African-American
male, later identified as defendant, Wayne Wallace. While the
officers were proceeding northerly on East 23rd Street, they
observed a blue Honda traveling in the opposite direction. The
officers turned their patrol car around and activated their
lights and siren in an unsuccessful attempt to stop defendant's
Honda. Instead of stopping, defendant attempted to evade the
officers by circling the block twice while driving erratically.
The officers continued to pursue defendant for approximately
one mile, covering about thirteen or fourteen city blocks.
During that pursuit, defendant drove through six stop signs
without stopping and also drove on the wrong side of the roadway.
At another point, he drove the wrong way down a one-way street.
Defendant threw a handgun out of the window that was later
retrieved by the officers and found to be loaded with hollow-nosed bullets. During the pursuit, neither defendant nor the
police officers traveled at speeds in excess of thirty miles per
hour. Defendant stopped his vehicle only after his path was
blocked by three other police vehicles. At that point, defendant
jumped out of the Honda and attempted to run, but he was
apprehended immediately.
Defendant was charged with second-degree eluding a police
officer, unlawful possession of a handgun, possession of hollow-nosed bullets, and a disorderly persons offense of resisting
arrest. He was also charged with violations of several motor
vehicle statutes, including careless driving, failing to stop for
stop signs, and traveling the wrong way down a one-way street.
Defendant was tried before a jury on all of the charges,
including the motor vehicle charges and the disorderly persons
offense. The jury found defendant guilty of second-degree
eluding a police officer, third-degree unlawful possession of a
weapon, fourth-degree possession of a prohibited weapon,
resisting arrest, and all of the motor vehicle charges.
Defendant was sentenced to eight years of imprisonment on the
eluding charge, a concurrent sentence of four years on the
possession of a weapon charge, a concurrent sentence of eighteen
months on the possession of a prohibited weapon charge, and a
concurrent sentence of six months on the resisting arrest charge.
In a published opinion, the Appellate Division merged
defendant's resisting arrest and careless driving convictions
with the second-degree eluding conviction and otherwise affirmed.
State v. Wallace,
313 N.J. Super. 435, 438-43 (1998). The court
rejected defendant's contention that because the "risk of death
or injury to any person" is an essential element of second-degree
eluding, it was reversible error for the trial court to fail to
instruct the jury on the meaning of the word "injury." Id. at
440. The court concluded that the phrase "injury to any person"
need not be defined for a jury because the phrase is clear and
includes injury risks of all types. Ibid. We granted
defendant's petition for certification. State v. Wallace,
157 N.J. 544 (1998).
Defendant argues that the Appellate Division's decision is
inconsistent with the Legislature's intent to limit the term
"injury" to "bodily injury" rather than injury risks of all
types. Defendant also argues that State v. Dorko,
298 N.J.
Super. 54, 58 (App. Div.), certif. denied,
150 N.J. 28 (1997),
correctly held that the term "injury" must be defined for a jury
as an element of the offense of second-degree eluding.
The Passaic County Prosecutor argues "that despite the
holding in Dorko, [defendant's second-degree eluding conviction]
should not be reversed . . . . A review of the trial court's
jury charge clearly establishes that the instruction was proper."
The Passaic County Prosecutor disagrees "with the holding in
Dorko in that absence of a definition of 'injury' would lead the
jury to speculate as to what extent of an injury would satisfy
the statute. A jury of average intelligence would use a
definition of injury as used in N.J.S.A. 2C:11-1a."
The Attorney General, as amicus curiae, argues that because
the Legislature did not define "risk of death or injury to any
person," it intended an all-inclusive ordinary meaning. The
Attorney General points to many sections of the Code to
illustrate that the Legislature knew how to limit the term
"injury," and because it chose not to, it intended an all-inclusive meaning.
The Legislature has not defined the phrase "risk of death or
injury to any person" or the term "injury" in the Code. For that
reason, we must examine the legislative history of the Code's
present second-degree eluding offense. When the Code became
effective on September 1, 1979, eluding was part of the resisting
arrest offense, N.J.S.A. 2C:29-2. The offense was elevated from
a disorderly persons offense if the perpetrator: (1) "[u]ses or
threatens to use physical force or violence against the law
enforcement officer or another," N.J.S.A. 2C:29-2a (emphasis
added); or (2) "[u]ses any other means to create a substantial
risk of causing physical injury to the public servant or
another." N.J.S.A. 2C:29-2b (emphasis added). The source for
that section of our Code was Section 242.2 of the Model Penal
Code.
By L. 1981, c. 290, § 28, effective September 24, 1981, the
Code was amended to renumber the sections and to create a
separate offense for eluding in N.J.S.A. 2C:29-2b. That offense
was restricted to the use of motor vehicles and was only a
disorderly persons offense.
The Code was amended again in 1991 to make eluding a fourth-degree offense if there was a risk of death or injury. L. 1991,
c. 343, § 3. A permissive inference regarding a person's conduct
during flight or attempt to elude was added at the same time.
Ibid. Finally, in 1993, eluding was elevated from a fourth-degree offense to a crime of the third-degree. L. 1993, c. 219,
§ 5. It became a second-degree offense if the attempt to elude
created a risk of death or injury to any person. Ibid. At the
same time, the Legislature amended N.J.S.A. 2C:12-1b(6), the
section of the Code relating to aggravated assault by a motor
vehicle while eluding the police or law enforcement person, to
eliminate the requirement of "serious bodily injury." L. 1993,
c. 219, § 2. It substituted "any bodily injury." Ibid. Read
together the sections suggest that the Legislature intended both
second-degree eluding and second-degree aggravated assault
caused while eluding a law enforcement officer under N.J.S.A.
2C:12-1b(6) to require "bodily injury" or "risk of bodily injury"
as defined in N.J.S.A. 2C:11-1a rather than "serious bodily
injury."
Bodily injury "means physical pain, illness or any
impairment of physical condition." N.J.S.A. 2C:11-1a. The
history of the eluding offense indicates the Legislature's intent
to restrict the injury or risk of injury to physical injury.
Unless the jury is told that the risk of injury means risk of any
physical injury, a jury in an eluding case could convict a
defendant because of the risk of a nonphysical or psychological
injury. Based on the requirement that a criminal statute must be
strictly construed, State v. Valentin,
105 N.J. 14, 17 (1987),
that each element of an offense must be properly defined for a
jury, State v. Green,
86 N.J. 281, 288 (1981), and that the
probable legislative intent in respect of these statutory
provisions be applied, Township of Stafford v. Stafford Tp.
Zoning Bd. of Adjustment,
154 N.J. 62, 71 (1998), we hold that in
a second-degree eluding case, the jury must be instructed that
the term "injury" means bodily injury as defined in N.J.S.A.
2C:11-1a. To that extent, we agree with Dorko's requirement that
"injury" must be defined for the jury. Clearly, property injury
or damage could never satisfy the statutory requirement of "risk
of death or injury to any person."
The failure to define the term "injury" for the jury in this
case was harmless error. The case was tried on the theory that
because defendant violated our traffic laws, his eluding created
a rebuttable inference that the flight or attempt to elude posed
a risk of death or injury to any person within the meaning of
N.J.S.A. 2C:29-2b.
The eluding statute provides that "there shall be a
permissive inference that the flight or attempt to elude creates
a risk of death or injury to any person if the person's conduct
involves a violation of chapter 4 of Title 39 or chapter 7 of
Title 12 of the Revised Statutes." N.J.S.A. 2C:29-2b. The
permissive inference may be used if the defendant is found to
have violated one or more of the motor vehicle statutes contained
in Title 39, chapter 4.
Unlike the situation in Dorko, the trial court in this case
instructed the jury on the underlying motor vehicle offenses with
which defendant had been charged. The court first instructed the
jury on the elements of the crime of second-degree eluding and
the applicable permissive inference:
If you find that the State has proven all six
of the elements [of third-degree eluding]
beyond a reasonable doubt, you must go on in
your deliberations to consider a seventh
element which will distinguish the third
degree eluding from the greater offense of a
second degree eluding. The State must prove
beyond a reasonable doubt the seventh element
which is that the flight or attempt to elude
created a risk of death or injury to any
person. You may infer such a risk if the
defendant's conduct, in fleeing, or in
attempting to elude the officer, involved a
violation of the motor vehicle law of this
State.
It is alleged that the defendant's conduct
involved a violation of the motor vehicle
laws. You have heard the defendant has been
charged with a number of motor vehicle
offenses: careless driving, six charges of
failing to stop at a stop sign, going up the
wrong way on a one-way street and crossing
into the wrong side of the street. However,
you are not required or compelled to draw
this inference. As I have already explained
it, it is your exclusive province to
determine whether the facts and circumstances
shown by the evidence support any inference
and you are always free to accept or reject
any inference if you wish.
The trial court also instructed the jury on each element of
the following motor vehicle offenses with which defendant had
been charged: careless driving, N.J.S.A. 39:4-97, failing to stop
at a stop sign, N.J.S.A. 39:4-144, driving the wrong way on a
one-way street, N.J.S.A. 39:4-85.1, littering or throwing debris
from his vehicle, N.J.S.A. 39:4-64, leaving a vehicle with the
engine running, N.J.S.A. 39:4-53, and failure to keep right,
N.J.S.A. 39:4-82. The jury found defendant guilty of violating
those motor vehicle laws.
Under the proper jury instructions, the State, in reliance
on the permissive inference, was not obligated to prove
affirmatively that there was "any person" who was placed at risk
of death or injury in order to establish that defendant was
guilty of second-degree eluding. The present case is to be
distinguished from Dorko where the jury was not asked to decide
whether the motor vehicle statutes had been violated. Here, the
jury found that defendant had committed multiple violations of
motor vehicle and traffic laws, and thus properly applied the
permissive inference.
Finally, we disagree with defendant and the conclusion in
Dorko that if the statutory permissible inference of N.J.S.A.
2C:29-2b is unavailable, the prosecutor must prove that some
member of the public was in the vicinity of the chase caused by
the eluding vehicle. We are satisfied that the Legislature
intended to protect all persons by the eluding statute, including
the police officers occupying the chasing vehicle and any persons
in the eluding vehicle, as well as any people who could
potentially be exposed to injury or death along the chase route.
In our view, the statute was designed to punish those who elude
the police and actually cause injury or death, as well as those
whose unlawful conduct creates a possibility of injury to others.
In this case, as the Appellate Division properly noted, "a
motor vehicle pursuit through the city streets of Paterson in a
residential or commercial area at 10:45 p.m. create[d] a risk of
death or injury" to people. Wallace, supra, 313 N.J. Super. at
443. The evidence of the time of day of defendant's chase, the
residential or commercial character of the neighborhood, and the
volume of traffic all circumstantially demonstrate that people
were likely to be in the area and that they were put at risk of
death or injury by defendant's eluding.
Because the permissive inference applied in this case, there
was no need for the State to present circumstantial evidence to
prove that defendant's conduct produced a risk of death or injury
to any person.
We hold that the term "injury" must be defined in a second-degree eluding charge except where the permissive inference can
be drawn. The judgment of the Appellate Division is affirmed.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, POLLOCK, O'HERN, GARIBALDI, and STEIN join in JUSTICE COLEMAN's opinion.
NO. A-46 SEPTEMBER TERM 1998
ON APPEAL FROM
ON CERTIFICATION TO Appellate Division, Superior Court
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
WAYNE WALLACE,
Defendant-Appellant.
DECIDED June 22, 1999
Chief Justice Poritz PRESIDING
OPINION BY Justice Coleman
CONCURRING OPINION BY
DISSENTING OPINIONS BY