Opinion
DOCKET NO. A-6294-11T1
08-12-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JAMES PERRY, a/k/a DENIED, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Jacqueline E. Turner, Assistant Deputy Public Defender, of counsel and on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Andrew R. Burroughs, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Reisner, Ostrer and Carroll. On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 10-01-0258. Joseph E. Krakora, Public Defender, attorney for appellant (Jacqueline E. Turner, Assistant Deputy Public Defender, of counsel and on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Andrew R. Burroughs, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
The trial judge in this case told the jury that it could not assign any weight to the lack of evidence presented by the State. In so doing, the court misstated the basic instruction on reasonable doubt, which may arise from the lack of evidence, as well as the evidence actually presented. See State v. De Paola, 5 N.J. 1, 9 (1950). The court's instruction constituted both structural and plain error compelling reversal of defendant's conviction.
I.
This case involves a vehicular double-homicide. The victims were a mother and her ten-year-old son, who were killed by a speeding vehicle that eluded police. With respect to each victim, defendant was convicted of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a); second-degree leaving the scene of a fatal accident, N.J.S.A. 2C:11-5.1; second-degree causing bodily injury while eluding a law enforcement officer, N.J.S.A. 2C:12-1(b)(6); third-degree knowingly leaving a motor vehicle accident involving serious bodily injury, N.J.S.A. 2C:12-1.1; and third-degree endangering an injured victim, N.J.S.A. 2C:12-1.2. He was also convicted of a single count of second-degree eluding, N.J.S.A. 2C:29-2(b).
The collision that killed Joselin Lizardo and her son resulted from a multi-car chase through the streets of East Orange shortly before 11:00 p.m. on November 25, 2008. Police observed two speeding vehicles, an Acura followed by a BMW. The police pursued the two with sirens and emergency lights. Traveling over fifty m.p.h. in a thirty-five m.p.h. zone, the drivers refused to stop. As they proceeded down Main Street toward the Newark border, the East Orange police suspended their pursuit.
Immediately thereafter, the Acura crashed into Lizardo's Toyota on Orange Street — the extension of Main Street once it enters Newark — as she apparently was making a u-turn. Police saw a plume of smoke rise from the scene. Lizardo was found non-responsive in the front of her car. Her son was thrown from the vehicle. He died at the hospital the next day. Lizardo died two days later. The BMW fled, but the Acura was heavily damaged.
Two occupants of the Acura were arrested on the scene. Police found Chad Pamplin crouched in the rear passenger side seat while the Acura filled with a thick, whitish smoke. His door was locked or inoperable. Police extricated him from the vehicle after smashing the rear driver's side window and the rear windshield. Eugene Reaves was arrested while walking down Myrtle Avenue, a side street. He was limping, bleeding from his nose, and holding his arm. Reaves's DNA was found on the front passenger side air bag, the front passenger seat, and the exterior of the rear passenger door.
Pamplin and Reaves were charged with third-degree receiving stolen property, the Acura. Their cases were severed from defendant's and were resolved, after defendant's trial, with pleas to disorderly persons offenses.
An eyewitness, Ms. Draughn, testified that she heard the crash from her apartment. From her window, she saw that the Acura had collided with her own car, which was parked across the street. Draughn did not see Lizardo's Toyota. Almost immediately after the Acura struck Draughn's car, she saw a slender, African-American man who appeared to be about five-foot-ten or slightly taller, open the driver's door, exit, and run north on Roseville Avenue. The man had long dreadlocks.
Consistent with the police testimony regarding the arrests of Pamplin and Reaves, Draughn testified there were two other passengers, in addition to the fleeing driver, although she did not say she actually saw both of them. She stated: "There had to be someone in the front and also in the back on the passenger side." Draughn ran down to the street, where she observed that the front passenger door was open, the front passenger seat empty, and police working to extricate the rear passenger. Although police identified Draughn as an eyewitness the night of the collision, police did not interview her until April 2011.
To prove that defendant was the driver, the State presented evidence that defendant's DNA was found on the driver's air bag. A detective processed the vehicle for fingerprints, including interior items around the driver's seat, such as the steering wheel, mirror, and gear shifter, but no usable fingerprints were found. However, blood on the two front airbags was subjected to DNA analysis.
The DNA match to defendant was made in April 2009, after defendant was arrested on an unrelated charge. Defendant was also a tall, slender, African-American male. At trial, he apparently wore dreadlocks. Defense counsel argued that defendant's failure to cut his dreadlocks reflected his belief in his own innocence.
Defendant testified that there were four, not three, occupants of the vehicle; and, he was seated in the rear, behind the driver. He suffered a cut lip when his face struck the back of the driver's seat. After the collision, as the car filled with smoke, he climbed over the driver's seat to exit, because the rear driver's side door would not open. As he did so, he pushed away the front airbag, and must have brushed his cut lip on the airbag. He admitted that he fled the scene, leaving the victims, as well as his friends, Pamplin and Reaves. He also admitted that he had two indictable convictions, one before the incident, for which he received probation.
Defendant also testified that the driver of the vehicle was a person named Alquan Johnson. Defendant asserted that Johnson — whom he did not know — accompanied Pamplin and Reaves. The three men picked up defendant from his girlfriend's home. Defendant testified that his girlfriend was asleep when the three men arrived. The four men were simply going to cruise the streets.
The BMW pulled up next to the Acura and revved its engines, sparking a drag race between the Acura and the BMW. The police chase and collision followed. Defendant testified that Johnson exited immediately after the Acura came to rest. The defense presented evidence, including photographs, reflecting that Johnson was a five-foot-ten-inch African-American male who had dreadlocks in October 2006. However, Johnson had cut the dreadlocks at some point before a corrections photograph was taken in April 2009.
One East Orange police witness called by the defense confirmed that police received a report in March 2009 that Johnson was the driver. The report was received before defendant was charged based on the DNA match. The police also received information that Johnson may have changed his appearance to avoid apprehension by cutting his dreadlocks. The witness stated the information was passed on to the Newark Police Department, which was handling the homicide investigation. Another defense police witness confirmed that even after defendant was linked to the homicide, Johnson was classified as a suspect. Nonetheless, police never interviewed Johnson, even though, as the defense established, he was incarcerated in the Essex County jail in 2009.
On cross-examination, the State elicited that the information received regarding Johnson was an anonymous tip. The State did so because the defense elicited that the information received was embodied in a document entitled "intelligence report." The defense sought a mistrial based on the State's questioning. The court denied the motion, reasoning that the title tended to lend credibility to the report, and the defense opened the door to the State's questioning. During cross-examination of another defense police witness, who was describing his investigation of Reaves, Pamplin, defendant and Johnson, the witness disclosed that the names were submitted to a "VIPER unit" "to reduce the duplication of efforts between the narcotics unit and a gang unit." The judge denied a defense mistrial motion, after promptly instructing the jury to disregard the gang reference, stating that "[t]here is no proof that [defendant] is in any way involved in any gang activity."
In rebuttal, a crime scene investigator testified that he photographed the Acura a week after the collision, and did not recall any difficulty opening the rear driver's side door.
Included in the court's instructions to the jury were the standard charges on reasonable doubt and direct and circumstantial evidence. See Model Jury Charge (Criminal), "Reasonable Doubt" (1997); Model Jury Charge (Criminal), "Circumstantial Evidence" (1993). It is unclear whether the judge misread a portion of the reasonable doubt charge, or there was a transcription error. According to the record, the judge stated, "A reasonable doubt may arise from the evidence itself or from a lack of testified [sic]." By contrast, the model charge refers to "the evidence itself or a lack of evidence." Model Jury Charge (Criminal), "Reasonable Doubt" (1997) (emphasis added). If the judge did misspeak, neither counsel alerted the court to the error. Any error was then corrected in the discussion of direct and circumstantial evidence, when the judge stated, "A defendant may be found not guilty by reason of direct evidence, circumstantial evidence, a combination of the two or a lack of evidence, if it raises in your mind a reasonable doubt as to the defendant's guilt."
After less than an hour of deliberations, the jury directly inquired as to the impact of the lack of evidence on its deliberations. The jury's note asked, "Are we allowed to assign any weight to the fact that evidence/potential evidence was NOT proffered by either the State or the defense?" We quote the colloquy at length:
THE COURT: 1:35 p.m. today I received a note from the jurors, which I marked as C-1 which reads as follows: "Are we allowed to assign any weight to the fact that evidence/potential evidence was notproffered by either the State or the defense?"
The answer will be – that I propose to give is, no, you are only allowed to consider evidence that's been given to you either through witness testimony or physical evidence that's been given in the jury room.
[DEFENSE COUNSEL]: Would I [sic] propose rather than say no, just read that portion, the only evidence you are to consider is the evidence you heard as well as the physical evidence –
THE COURT: Why? I don't want this jury to consider any evidence other than what's given to them.
[DEFENSE COUNSEL]: Right.
THE COURT: The answer to their question is no, they are not to [sic] allowed to assign any weight. That's what I'm going to answer. Okay. Bring the jurors in.
[PROSECUTOR]: Your Honor, could we just get copies of C-1 when we're done?
THE COURT: Yes.
(Whereupon the jury enters the courtroom at 1:38 p.m.[])
THE COURT: We have to wait for the alternates to come back, from down the hall.
Okay. Members of the jury, I received a note from you which, for the record, I marked as C-1 for identification. It reads as follows: "Are we allowed to assign any weight to the fact that evidence/potential evidence was not proffered by either the State or the defense?"
The answer to that question is no, you're only to consider evidence that's been given to you either, A, through the witness stand,
and any documents or tangible items that have been placed into evidence. Okay?
Thank you. You may resume your deliberations.
In the note itself, the word "not" was written in all-capital letters, as distinct from the rest of the note, apparently for emphasis.
At around 3:10 p.m., in response to its request, the jury heard a read back of defendant's testimony. Later that day, the jury returned its verdict.
Defendant received an aggregate forty-year term. After merger, the court sentenced defendant to consecutive sixteen-year terms of imprisonment on the manslaughter counts, consecutive to concurrent eight-year terms on the two counts of second-degree leaving the scene of a fatal accident, and concurrent to concurrent five-year terms on the two counts of endangering an injured victim. Pursuant to NERA, N.J.S.A. 2C:43-7.2, defendant was required to serve eighty-five percent of the thirty-two years imposed on the manslaughter counts before parole eligibility.
In support of its sentence, the court found aggravating factors three, likelihood of reoffending, N.J.S.A. 2C:44-1(a)(3); six, prior record of convictions, N.J.S.A. 2C:44-1(a)(6); and nine, need to deter, N.J.S.A. 2C:44-1(a)(9). The court reviewed defendant's criminal record and his history of offending while under supervision. The court found no mitigating factors. The court did not expressly apply the factors under State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986), to explain imposition of consecutive sentences for each manslaughter count. However, the court noted that a sentence for knowingly leaving the scene of a motor vehicle accident must, by statute, be consecutive to sentences of other crimes. See N.J.S.A. 2C:11-5.1 (fourth unnumbered paragraph).
The provision states: "Notwithstanding the provision of N.J.S.A. 2C:44-5 or any other provisions of law, when the court imposes multiple sentences of imprisonment for more than one offense, those sentences shall run consecutively."
Defendant raises the following points on appeal:
POINT I
THE TRIAL JUDGE ERRED IN DENYING THE DEFENSE REQUEST FOR A MISTRIAL AFTER SEVERAL PIECES OF INADMISSIBLE AND PREJUDICIAL INFORMATION WERE TESTIFIED TO.
POINT II
THE TRIAL JUDGE ERRED IN TELLING THE JURORS THEY COULD NOT USE A LACK OF EVIDENCE IN REACHING THEIR VERDICT. (Not Raised Below).
POINT III
THE DEFENDANT'S SENTENCE IS EXCESSIVE.
We reverse on the basis of point II, and do not reach defendant's remaining arguments.
II.
The court erred in its response to the jury's question regarding the impact of the failure to produce evidence. Although defense counsel did not object to the court's response, we are unpersuaded that the defense invited the court's error. The court erroneously defined the fundamental concept of reasonable doubt, and the State's burden of proof. The failure to accurately define reasonable doubt is a structural error. Sullivan v. Louisiana, 508 U.S. 275, 281-82, 113 S. Ct. 2078, 2082-83, 124 L. Ed. 2d 182, 190-91 (1993). As the court's response was capable of producing an unjust result, it constitutes plain error requiring reversal. See R. 2:10-2.
We begin with the jury's question itself. The jury inquired whether it could "assign any weight to the fact that evidence/potential evidence was NOT proffered." The jury thus inquired about the principle embodied in our model charge that "[a] reasonable doubt may arise from the evidence itself or from a lack of evidence." Model Jury Charge (Criminal), "Reasonable Doubt" (1997).
The court directly told the jury that no, it could not consider the fact that evidence or potential evidence was not proffered. The court then directed the jury to consider only the evidence presented, in the form of testimony and physical evidence.
By inquiring about the failure to proffer evidence "by either the State or the defense," (emphasis added), the jury's question also implied that defendant had a burden, equal to the State, to present evidence. The question should have prompted the court to re-emphasize that defendant, notwithstanding that he testified and called witnesses, had no burden to present evidence, and his failure to proffer additional evidence should not be weighed against him. However, defendant has not raised this aspect of the court's response on appeal. Therefore, we do not rely upon it.
We suspect that the trial judge — and defense counsel — misinterpreted the jury's question as inquiring whether it could weigh items marked for identification that had been addressed at trial but not formally admitted into evidence. It would have been correct to respond to such a question, if asked, that the jury could not weigh such items, and could only rely on testimony and physical items actually admitted into evidence. However, we have no doubt that the jury's question pertained to the impact of the lack of evidence on its ultimate determination. The jury's question asked whether it could weigh "the fact that evidence/potential evidence was NOT proffered." (Emphasis added).
The State concedes that the court's response was erroneous as it pertained to the basis of reasonable doubt. However, the State argues that the error should be overlooked because it was "invited error." We disagree. We will first address why we conclude that the error was not invited. We then will examine the nature of the error, in concluding that it warrants reversal.
A.
"Invited error" has been broadly defined as "'errors which were induced, encouraged, or acquiesced in or consented to by defense counsel.'" State v. Corsaro, 107 N.J. 339, 345 (1987) (quoting State v. Harper, 128 N.J. Super. 270, 277 (App. Div.), certif. denied, 65 N.J. 574 (1974)). Such errors "'ordinarily are not a basis for reversal on appeal.'" Ibid. (quoting Harper, supra, 128 N.J. Super. at 277). "That principle is grounded in considerations of fairness and is meant to prevent defendants from manipulating the system." State v. A.R., 213 N.J. 542, 561 (2013) (internal quotation marks and citations omitted). Invited error does not absolutely foreclose reversal. Instead, the reviewing court must determine whether "'the particular error . . . cut mortally into the substantive rights of the defendant.'" Corsaro, supra, 107 N.J. at 345 (quoting Harper, supra, 128 N.J. Super. at 277). That determination "call[s] for 'a close, balancing examination of the nature of the error, its impact on the . . . jury's verdict and the quality of defendant's motives and conduct in bringing about the error.'" Id. at 346 (quoting Harper, supra, 128 N.J. Super. at 278).
Although invited error has been broadly defined to include a defense attorney's consent to, or acquiescence in an error, our Supreme Court has emphasized that more is required: an element of reliance by the court.
[T]he invited-error doctrine . . . is implicated only when a defendant in some way has led the court into error. Conversely, when there is no evidence that the court in any way relied on a defendant's position, it cannot be said that a defendant has manipulated the system. Some measure of reliance by the court is necessary for the invited-error doctrine to come into play.
[State v. Jenkins, 178 N.J. 347, 359 (2004).]
In Jenkins, supra, the defense attorney expressly asked the court not to charge lesser-included offenses. However, based on the trial judge's comments, the Court found that "[a]lthough the trial court acceded to defendant's request . . . the court arrived at the decision not to instruct on lesser-included offenses independently of any invitation or encouragement by defendant. As such, the doctrine of invited error does not apply." Id. at 360. The Court therefore analyzed the failure to charge the lesser-included offenses under a plain error standard. Ibid.
As in Jenkins, we conclude that defense counsel did not induce the court's response to the jury's question. The judge stated the question posed and immediately explained his answer. Although he then added that it was his proposed response, the judge resisted the slightest modification of his answer. Defense counsel suggested that the judge drop the simply "no" answer and retain the balance of his response. The judge cut off the attorney and asked, "Why? I don't want this jury to consider any evidence other than what's given to them." Defense counsel responded ambiguously, "Right." The judge then closed the matter, stating, "The answer to their question is no, they are not to [sic] allowed to assign any weight. That's what I'm going to answer. Okay. Bring the jurors in." The judge then delivered his answer as initially outlined.
Under those circumstances, the court composed its answer "independently of any invitation or encouragement by defendant." Ibid. The error was not invited error. We therefore consider whether it was plain error. See R. 2:10-2 (stating that an appellate court shall disregard errors unless they are "clearly capable of producing an unjust result").
B.
An error in an instruction pertaining to reasonable doubt rests on a special footing. Due process mandates the "beyond a reasonable doubt" standard of proof in criminal trials. State v. Medina, 147 N.J. 43, 49 (1996), cert. denied, 520 U.S. 1190, 117 S. Ct. 1476, 137 L. Ed. 2d 688 (1997). "A jury instruction that fails to communicate the State's burden to prove guilt beyond a reasonable doubt is not amenable to harmless-error analysis and requires reversal." Id. at 50 (citing Sullivan, supra, 508 U.S. at 278-81, 113 S. Ct. at 2081-83, 124 L. Ed. 2d at 189-90). Although the Constitution does not require a particular formulation in defining reasonable doubt, "instructions that overall lessen the State's burden of proof violate due process." Id. at 52.
In Medina, the Court reviewed jury instructions leading to convictions in two separate cases, State v. Medina and State v. Farmer. Medina did not object at trial to the reasonable doubt instruction he later argued was deficient. The Court ultimately determined that the charge did not constitute plain error because, despite its imperfections, it adequately conveyed the principles of reasonable doubt. Id. at 54-56.
The United States Supreme Court in Sullivan, supra, reasoned that in order to find that an error was harmless, a reviewing court must find that the jury's verdict of guilt beyond a reasonable doubt "would surely not have been different absent the constitutional error." 508 U.S. at 280, 113 S. Ct. at 2082, 124 L. Ed. 2d at 190 (emphasis omitted). However, the Court stated that a harmless error analysis is illogical if the jury verdict was reached based on a standard of proof that fell short of beyond a reasonable doubt. Id. at 280, 113 S. Ct. at 2082, 124 L. Ed. 2d at 189-90. The failure to accurately charge reasonable doubt implicates both due process and the right to trial by jury. Id. at 278, 113 S. Ct. at 2081, 124 L. Ed. 2d at 188. The Court held that a failure to accurately define reasonable doubt is structural error requiring reversal without application of a harmless error analysis. Id. at 281-82, 113 S. Ct. at 2082-83, 124 L. Ed. 2d at 190-91. See also State v. Camacho, ___ N.J. ___, ___ (2014) (slip op. at 24-25) (recognizing that "denial of the right to trial by jury by the giving of a defective reasonable-doubt instruction" constitutes structural error (internal quotations marks and citation omitted)).
As the United States Supreme Court has explained, a structural error is a
defect affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself. Such errors infect the entire trial process, and necessarily render a trial fundamentally unfair. Put another way, these errors deprive defendants of basic protections without which a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence . . . and no criminal punishment may be regarded as fundamentally fair.See also Camacho, supra, ___ N.J. at ___ (slip op. at 23) (noting that "structural error" affects the basic trial framework and affects the legitimacy of the trial); State v. Purnell, 161 N.J. 44, 61-62 (1999) (discussing structural error).
[Neder v. United States, 527 U.S. 1, 8-9, 119 S. Ct. 1827, 1833, 144 L. Ed. 2d 35, 46-
47 (1999) (internal quotation marks and citations omitted).]
Sullivan did not address the issue of plain error, as the defendant in that case objected to the court's instruction. Under Federal Rule of Criminal Procedure 52 (Fed.R.Crim.P. 52), a federal
appellate court may, in its discretion, correct an error not raised at trial only where the appellant demonstrates that (1) there is an "error"; (2) the error is "clear or obvious, rather than subject to reasonable dispute"; (3) the error "affected the appellant's substantial rights, which in the ordinary case means" it "affected the outcome of the district court proceedings"; and (4) "the error seriously affect[s] the fairness, integrity or public reputation of judicial proceedings."The United States Supreme Court has expressly declined to decide whether all structural errors automatically satisfy plain error criteria under Fed.R.Crim.P. 52, in particular, whether the error affected a defendant's substantial rights. Marcus, supra, 560 U.S. at ___, 130 S. Ct. at 2164-66, 176 L. Ed. 2d at 1018-20. Our Court also has not directly addressed the extent to which a structural error mandates reversal when a defendant has failed to register a timely objection.
[United States v. Marcus, 560 U.S. 258, ___, 130 S. Ct. 2159, 2164, 176 L. Ed. 2d 1012, 1018 (2010) (citing Puckett v. United States, 556 U.S. 129, ___, 129 S. Ct. 1423, 1429, 173 L. Ed. 2d 266, 275 (2009)).]
In Camacho, supra, our Court's most recent structural error case, the Court did not reach the issue, because the Court ultimately declined to classify the error in that case — the failure to deliver a no-adverse-inference-charge — as structural error. In State v. Kates, 216 N.J. 393, 395-96 (2014), the Court held that a structural error, consisting of the wrongful denial of a non-indigent defendant's constitutional right to counsel of his choice, mandated reversal without a showing of prejudice, but the defendant in that case preserved the objection.
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We are aware that several federal courts of appeal have held that prejudice is intrinsic to a misstatement of reasonable doubt. Thus, federal courts have found that structural error in the explanation of reasonable doubt satisfies the federal plain error standard, allowing reversal despite a defendant's failure to object. See United State v. Birbal, 62 F.3d 456, 461 (2d Cir. 1995) (finding plain error warranting reversal "where a jury instruction on reasonable doubt is constitutionally deficient, prejudice may be presumed, and we need not assess whether the instruction affected the outcome of the trial"); United States v. Merlos, 8 F.3d 48, 51 (D.C. Cir. 1993) (applying Sullivan in plain error context because "the court cannot assess the impact of the error on the outcome of the trial because there has been no jury finding of guilt beyond a reasonable doubt in the first instance"), cert. denied, 511 U.S. 1064, 114 S. Ct. 1635, 128 L. Ed. 2d 358 (1994); United States v. Colon-Pagan, 1 F.3d 80, 81-82 (1st Cir. 1993) (finding plain error and presuming prejudice where the trial court has "seriously misdescribed the government's burden of proof"); see also United States v. Washington, 12 F.3d 1128, 1138 (D.C. Cir.) (stating a "constitutionally deficient reasonable doubt instruction is presumptively prejudicial"), cert. denied, 513 U.S. 828, 115 S. Ct. 98, 130 L. Ed. 2d 47 (1994).
We need not determine whether a structural error in the definition of reasonable doubt inevitably satisfies the plain error standard set forth in Rule 2:10-2, and our caselaw. We are satisfied that (1) the court's response to the jury's question was constitutionally deficient, and (2) the response constituted plain error under the circumstances of this case. We consider these two issues in turn.
C.
Our Court has reviewed answers to jury questions under the same principles as jury instructions. See State v. Lykes, 192 N.J. 519, 537 (2007). An erroneous jury instruction must be "examined as a whole to determine its overall effect." State v. Wilbely, 63 N.J. 420, 422 (1973). Consequently, a reviewing court must consider an incorrect response to a jury's question in the context of the full final charge that preceded it. In some cases, a court's response to a jury question may deviate, insubstantially, from the prepared instruction. In other cases, however, a response may undermine, and effectively override the prepared instruction, producing an erroneous statement of law.
Particularly with respect to instructions regarding reasonable doubt, "not every unhelpful, unwise, or even erroneous formulation . . . renders the instruction constitutionally deficient." Vargas v. Keane, 86 F.3d 1273, 1277 (2d Cir.), cert. denied, 519 U.S. 895, 117 S. Ct. 240, 136 L. Ed. 2d 169 (1996); see also State v. Wakefield, 190 N.J. 397, 473 (2007) (stating that omission of two sentences in model charge on reasonable doubt did not violate due process), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008). As we have noted, the error must lessen the State's burden of proof. See Medina, supra, 147 N.J. at 52.
In this case, the court's response to the jury's question, in the context of the instructions as a whole, lessened the State's burden of proof and, therefore, was constitutionally deficient. It is well-settled that reasonable doubt may arise from the lack of evidence. De Paola, supra, 5 N.J. at 9; State v. Andrews, 77 N.J.L. 108, 110 (Sup. Ct. 1908) ("A doubt, to be reasonable, must arise out of the evidence, or want of evidence, after a full consideration by the jury of all the evidence in the case."). See Johnson v. Louisiana, 406 U.S. 356, 360, 92 S. Ct. 1620, 1624, 32 L. Ed. 2d 152, 158 (1972) ("Numerous cases have defined a reasonable doubt as one based on reason which arises from the evidence or lack of evidence." (internal quotation marks and citation omitted)).
A court's refusal to charge that reasonable doubt may arise from a lack of evidence was deemed reversible error in De Paola, supra, 5 N.J. at 9. In a later case, the Court expressed some uncertainty as to whether explicit reference to the "lack of evidence" was essential as a matter of law, if not requested, since it was "far from evident that the conventional charge of reasonable doubt upon all the evidence in the case would be understood by a jury to exclude a doubt arising from lack of evidence." State v. Hudson, 38 N.J. 364, 378 (1962). Nonetheless, the Court first encouraged the inclusion of such instructions, whether requested or not. See State v. Driver, 38 N.J. 255, 294 (1962); State v. Walker, 33 N.J. 580, 594-95 (1960). The Court in Medina, supra, 147 N.J. at 61, later mandated use of the current instruction on reasonable doubt, including the statement, "'A reasonable doubt may arise from the evidence itself or from a lack of evidence.'"
However, the failure to include an explicit reference to the lack of evidence is far different from an explicit command, as in this case, to ignore the lack of evidence. The Court noted the distinction in Hudson, supra, and endorsed the holding in Andrews, which "condemned a charge which in positive terms said that a reasonable doubt may not arise from that lack" of evidence. Hudson, supra, 38 N.J. at 376. See also State v. Vessell, 450 So.2d 938, 947-48 (La. 1984) (finding it error for court to instruct jury that it was "prohibited by law . . . from going beyond the evidence to seek for doubts upon which to acquit the defendant, but must confine yourselves strictly to a dispassionate consideration of the testimony given upon the trial").
We are mindful that the judge correctly advised the jury, in his prepared final instruction, that "[a] defendant may be found not guilty by reason of direct evidence, circumstantial evidence, a combination of the two or a lack of evidence, if it raises in your mind a reasonable doubt as to the defendant's guilt." The jury's question reflected obvious confusion or uncertainty about the weight the jury could give to the lack of evidence. The court's answer, as the most recent and direct response, overrode its prior correct statement. "[R]easonable doubt instructions must be considered in their entirety." Medina, supra, 147 N.J. at 51-52. "Taken as a whole, the instructions must correctly convey the concept of reasonable doubt to the jury." State v. Dreher, 302 N.J. Super. 408, 467 (App. Div.), certif. denied, 152 N.J. 10 (1997), cert. denied, 524 U.S. 943, 118 S. Ct. 2353, 141 L. Ed. 2d 723 (1998). The instructions — including most prominently the judge's response — failed to do so.
The court's response to the jury's question effectively instructed the jury that it could not find reasonable doubt based on the lack of evidence in the State's case. The instruction was at odds with the fundamental allocation of the burden of proof upon the State. The impact of the lack of evidence arises inextricably from the State's burden to present evidence of a defendant's guilt. When the State fails to carry its burden, a jury is obliged to return a verdict of not guilty. Yet, in this case, the judge directed the jury to assign no weight to the lack of evidence. The court thus substantially lessened the State's burden of proof, and consequently violated defendant's right to due process.
D.
Having determined that the court delivered a constitutionally deficient instruction on reasonable doubt, we conclude that reversal is mandated under a standard plain error analysis.
An error in instructing the jury constitutes plain error when it raises "a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. Daniels, 182 N.J. 80, 102 (2004) (quoting State v. Macon, 57 N.J. 325, 336 (1971)). Errors in a jury instruction that are "crucial to the jury's deliberations on the guilt of a criminal defendant . . . are presumed to be reversible" and "are poor candidates for rehabilitation under the plain error theory." State v. Jordan, 147 N.J. 409, 422 (1997) (internal quotation marks and citation omitted).
In considering a jury charge, plain error is "[l]egal impropriety in the charge prejudicially affecting the substantial rights of the defendant sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result."See also Camacho, supra, ___ N.J. at ___ (slip op. at 31).
[Ibid. (quoting State v. Hock, 54 N.J. 526, 538 (1969), cert. denied, 399 U.S. 930, 90 S. Ct. 2254, 26 L. Ed. 2d 797 (1970)).]
The court's response unquestionably affected defendant's "substantial rights." It undermined his due process right to be tried based on the beyond-a-reasonable-doubt standard of proof. The error was "sufficiently grievous to justify notice." Jordan, supra, 147 N.J. at 422 (internal quotation marks and citation omitted). As we have discussed, the error vitiated the court's correct description of reasonable doubt.
We are convinced that the error "possessed a clear capacity to bring about an unjust result." Ibid. (internal quotation marks and citation omitted). The defense was predicated on a third party's guilt, and the State's apparent failure to investigate whether the third party, Alquan Johnson, was the driver. The jury did not hear from Johnson, nor did the other two passengers of the vehicle testify regarding who drove the Acura. The State did not present evidence of Johnson's whereabouts, or any investigation following up on the report that he was the driver. Conceivably, the jury was considering whether the lack of such evidence generated reasonable doubt about defendant's guilt. Yet, the court expressly prohibited the jury from giving any weight to the lack of evidence, or, in the jury's words, "the fact that evidence/potential evidence was NOT proffered." The court's error may well have contributed to the jury's finding of guilt. Consequently, a new trial is warranted.
Reversed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION