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State v. Harchar

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
Mar 6, 2015
DOCKET NO. A-4064-12T1 (App. Div. Mar. 6, 2015)

Opinion

DOCKET NO. A-4064-12T1

03-06-2015

STATE OF NEW JERSEY, Plaintiff-Respondent, v. JOHN HARCHAR, a/k/a BUTCH HARCHAR, a/k/a JOHN HARCHER, a/k/a ARTHUR HARCHAR, Defendant-Appellant.

Joseph E. Krakora, Public Defender, attorney for appellant (Anderson D. Harkov, Designated Counsel, on the brief). Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Joie Piderit, Assistant Prosecutor, of counsel and on the brief).


RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Sabatino and Leone. On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 12-04-0619. Joseph E. Krakora, Public Defender, attorney for appellant (Anderson D. Harkov, Designated Counsel, on the brief). Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Joie Piderit, Assistant Prosecutor, of counsel and on the brief). PER CURIAM

Defendant John Harchar was charged with fourth-degree peering into a dwelling place, and fourth-degree lewdness. During trial, defendant convinced the court to dismiss the fourth-degree lewdness count, and to go forward with trial solely on the peering count, with curative instructions preventing the jury from considering the evidence previously admitted under N.J.R.E. 404(b). After an unfavorable verdict, defendant appeals, claiming the trial court instead should have declared a mistrial sua sponte. Because defendant invited the alleged error, we affirm.

I.

It is helpful to start with the pertinent statutes. A person commits fourth-degree peering into dwelling places if,

knowing that he is not licensed or privileged to do so, he peers into a window or other opening of a dwelling or other structure adapted for overnight accommodation for the purpose of invading the privacy of another person and under circumstances in which a reasonable person in the dwelling or other structure would not expect to be observed.



[N.J.S.A. 2C:18-3(c).]
A person commits fourth-degree lewdness if
[h]e exposes his intimate parts for the purpose of arousing or gratifying the sexual desire of the actor or of any other person under circumstances where the actor knows or reasonably expects he is likely to be observed by a child who is less than 13 years of age where the actor is at least four years older than the child.



[N.J.S.A. 2C:14-4(b)(1).]

The State offered the following evidence about the charged incident. Defendant was staying in a vacant unit in an apartment building. A Mr. Wells also had an apartment there. In another apartment, K.W. lived with her two-year-old son and seven-year-old daughter.

At about 8:00 p.m. on January 6, 2012, Wells saw defendant exit the apartment building. Defendant was naked and holding and rapidly stroking his penis. Defendant looked through the glass panels of the back door to K.W.'s kitchen, and then into her kitchen window. Wells shouted "what the f[*ck] are you doing," and defendant darted back into his apartment. The incident lasted approximately twenty seconds.

Wells yelled, and people came out from the building, including K.W.'s sister. Defendant, wearing black spandex bicycle shorts, also came out of the building. He approached Wells and said, "I've been through this before. I'm sorry [that I did it]. I won't do it again." Wells called the police. Defendant went back into his apartment and locked the door.

Officer Brian Freund responded to the report of a prowler, and banged on defendant's door. After two minutes, defendant opened the door. He was fully dressed, with the black bicycle shorts beneath painter's pants. After Wells identified defendant, the officer arrested and handcuffed him.

K.W. came out of the building after she heard her sister outside shouting. She and the children had been in their rooms. There was no way to see into the children's room from the kitchen window. Although both Wells and K.W. testified that she kept her blinds closed, Officer Freund observed that the blinds slats were in the horizontal position, allowing a straight view into her kitchen.

Defendant called two witnesses at trial. The building superintendent testified that defendant was working for him and had permission to live in the vacant apartment. Another resident testified that when she heard K.W.'s sister screaming, she came out of her apartment and saw defendant in black bicycle shorts telling K.W.'s sister he was sorry.

Prior to trial, the court denied the State's motion to admit evidence under N.J.R.E. 404(b) that defendant had previously been convicted of exposing his penis while grabbing a young girl, and of masturbating in public. On the eve of trial, the State moved to admit testimony under N.J.R.E. 404(b) from Wells and Officer Freund about two other incidents involving defendant (the 404(b) evidence). After holding hearings under N.J.R.E. 104, the court allowed the State to present the following testimony. Wells testified that at about 2:30 a.m. on January 1, 2012, he saw defendant in the doorway of an apartment naked. Defendant was just standing there with his hands over his head holding onto the door's lintel. He closed the door almost immediately when he realized Wells was there. Officer Freund testified that when he removed defendant's handcuffs at police headquarters, defendant became very agitated, violently pulled down his pants, grabbed his penis, shook it at the officers, and said, "is this what you guys want to see[?]"

In the Rule 104 hearings, out of the presence of the jury, the court explained that the January 1, 2012 incident was "relevant to defendant's purpose in being out there naked because that's what he had done in the past," and that the headquarters incident had "probative value in that people ordinarily don't act in that manner and that it shows this is a person who would have no hesitation in pulling down his pants and exposing himself."

The court's limiting instruction told the jury the 404(b) evidence was admitted "to demonstrate the defendant's state of mind, his purpose [on] January 6, 2012, when the State alleges the defendant was naked and was looking through a window and door while he was masturbating," namely whether he "had the purpose to expose himself [on] January 6th for his sexual gratification." This was pertinent only to lewdness. See N.J.S.A. 2C:14-4(b)(1).

At the close of the State's case, defendant moved for judgment of acquittal on the fourth-degree lewdness count. Over the State's objection, the court dismissed that count at the close of the evidence. The court ruled that because K.W.'s windows were too high off the ground to allow anyone in K.W.'s house to observe defendant's intimate parts, defendant's actions did not occur "under circumstances where the actor knows or reasonably expects he is likely to be observed by a child who is less than 13 years of age." N.J.S.A. 2C:14-4(b)(1).

After the fourth-degree lewdness count was dismissed, defendant requested the "dismissed charge" instruction, informing the jury to consider only the peering evidence. Defendant also requested an instruction telling the jurors "they don't consider the 404(b) evidence." The court gave the curative instructions defendant requested. After closing arguments, the court again instructed the jury to disregard the 404(b) evidence.

The jury found defendant guilty of peering. He filed a motion for a new trial, arguing that after the fourth-degree lewdness charge was dismissed, the court should have declared a mistrial sua sponte instead of proceeding with trial using the curative instructions. The court denied the motion, finding no manifest injustice. The court sentenced defendant to eighteen months in prison for peering. It entered a judgment of conviction on December 19, 2012.

Defendant had also received a summons charging him with the disorderly-persons offense of lewdness in violation of N.J.S.A. 2C:14-4(a). After the jury verdict, the court, in a bench decision, convicted defendant of that offense because he had to reasonably expect his lewd act was "likely to be observed by other nonconsenting persons" such as Wells. Ibid. The court ultimately imposed a concurrent sentence of six months in jail.

Defendant appeals, raising the following arguments:

POINT I. THE TRIAL COURT ERRED WHEN IT ALLOWED THE STATE TO INTRODUCE EVIDENCE OF "OTHER CRIMES, WRONGS OR ACTS", IN ITS CASE IN CHIEF, THAT WAS IRRELEVANT AND SEVERELY PREJUDICIAL, FAILED TO GIVE A LIMITING INSTRUCTION WHEN THE EVIDENCE WAS FIRST INTRODUCED, GAVE AN ERRONEOUS INSTRUCTION THAT STATED SUCH EVIDENCE WAS USUALLY ADMISSIBLE, AND, ONCE IT REALIZED THE EVIDENCE WAS IRRELEVANT TO THE ONLY CHARGE THAT WOULD BE DECIDED BY THE JURY, FAILED TO GRANT A MISTRIAL.



POINT II. THE FAILURE OF THE TRIAL COURT TO PREVENT THE STATE FROM INTRODUCING AN IRRELEVANT ORAL STATEMENT BY DEFENDANT, IN WHICH HE ADMITTED HE HAS A PRIOR RECORD, COMBINED WITH THE COURT'S FAILURE TO INSTRUCT THE JURY ON HOW IT SHOULD WEIGH THIS STATEMENT, DEPRIVED DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL. (PARTIALLY RAISED BELOW).

II.

Defendant claims the trial court improperly allowed the jury to consider the 404(b) evidence, gave the jury an improper limiting instruction, and failed to grant a mistrial sua sponte after dismissal of the fourth-degree lewdness count. The State does not argue that the 404(b) evidence was properly admitted to prove the lewdness count. Instead, it contends this issue became moot because the court dismissed the fourth-degree lewdness count and struck the 404(b) evidence from the jury's consideration. The State notes this was precisely the corrective action requested by defendant, and asserts the jury is presumed to have followed the court's instructions.

Both parties argue solely concerning the validity of the jury's peering conviction. Defendant's brief alludes only in passing to his bench conviction for disorderly-persons lewdness. Defendant does not make any argument challenging the result of the bench trial. Thus, we deem any such challenges waived. Santiago v. N.Y. & N.J. Port Auth., 429 N.J. Super. 150, 154 n.2 (App. Div. 2012). We consider only defendant's arguments why his peering conviction should be reversed.

We need not decide whether the trial court's initial admission of the 404(b) evidence to prove fourth-degree lewdness was proper. Even assuming the 404(b) evidence was improperly admitted to prove lewdness, we reject defendant's demand for a new trial on the peering count. Defendant did not seek a mistrial, but instead successfully moved to have the court instruct the jury to consider only the evidence which was relevant and material to the peering count, and to ignore the 404(b) evidence. By thus asking to continue the trial, defendant invited the court's alleged error of not declaring a mistrial. That invited error did not result in a fundamental miscarriage of justice due to the court's instructions.

We do note that the trial court's explanations in the 104 hearings could be read as improperly admitting the 404(b) evidence "to prove the disposition of a person in order to show that such person acted in conformity therewith." N.J.R.E. 404(b). We also note that the court mentioned to counsel that the 404(b) evidence could show "absence of mistake." Ibid. However, the court's limiting instruction did not authorize the jury to consider it for either of those purposes.

A.

On appeal, defendant concedes that after the trial court dismissed the fourth-degree lewdness count, defense "[c]ounsel's immediate response during trial was to request the jury be instructed to disregard this evidence," rather than seeking a mistrial. Nevertheless, defendant complains that "[t]he court chose to attempt to give a 'curative' instruction" rather than granting a mistrial sua sponte. However, defendant invited the error he now challenges.

"'[A] defendant cannot beseech and request the trial court to take a certain course of action, and upon adoption by the court, take his chance on the outcome of the trial, and if unfavorable, then condemn the very procedure he sought . . . claiming it to be error and prejudicial.'" N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 340 (2010). "The doctrine of invited error does not permit a defendant to pursue a strategy . . . and then when the strategy does not work out as planned, cry foul and win a new trial." State v. Williams, 219 N.J. 89, 101 (2014). "Under that settled principle of law, trial errors that were induced, encouraged or acquiesced in or consented to by defense counsel ordinarily are not a basis for reversal on appeal[.]" State v. A.R., 213 N.J. 542, 561 (2013) (internal quotation marks omitted).

"Our courts have applied the doctrine of invited error in a wide variety of situations." M.C. III, supra, 201 N.J. at 340-41 (citing, e.g., State v. Baluch, 341 N.J. Super. 141, 194-95 (App. Div.), certif. denied, 170 N.J. 89 (2001)). In Baluch, information came to light that a juror might be tainted, but defense counsel said the juror "should be retained and that the jury could still reach a fair and impartial verdict based solely upon the evidence and not upon any extraneous influences." Baluch, supra, 341 N.J. Super. at 165-68, 194-95. After conviction, the defendant claimed on appeal that the court erred by not "sua sponte" declaring a mistrial or excusing the juror because of the alleged taint. Id. at 194. We held the defendant was "estopped from raising the issue." Id. at 195.

Here, defendant requested the court to give curative instructions to the jury excluding the lewdness and 404(b) evidence. Defendant's request clearly suggested defendant believed the jury should be retained and could still reach a fair and impartial verdict based upon the peering evidence. When the verdict was unfavorable, defendant's new trial motion claimed that "it was already too late and the jury was inflamed by this evidence which very likely had a bearing on the guilty verdict for the [p]eering count." Defendant is estopped from making that argument and claiming the court should have granted a mistrial sua sponte.

Granting a mistrial sua sponte has potentially serious consequences. "'A defendant is generally entitled to have a trial proceed to its conclusion[.]'" State v. Allah, 170 N.J. 269, 280 (2002). A sua sponte mistrial deprives the defendant of the opportunity to gain an acquittal from the current jury, whom the defendant may feel is favorably disposed to him due to the evidence, the arguments, or the rulings at trial. It also terminates the "defendant's 'valued right to have his trial completed by a particular tribunal,'" subjecting him to a second prosecution which "increases the financial and emotional burden on the accused, prolongs the period in which he is stigmatized by an unresolved accusation of wrongdoing, and may even enhance the risk that an innocent defendant may be convicted." State v. Gallegan, 117 N.J. 345, 352 (1989) (internal quotation marks omitted) (citing Arizona v. Washington, 434 U.S. 497, 503-05, 98 S. Ct. 824, 829-30, 54 L. Ed. 2d 717, 726-27 (1978)). "Even when judicial or prosecutorial error prejudices a defendant's prospects of securing an acquittal, he may nonetheless desire 'to go to the first jury and, perhaps, end the dispute then and there with an acquittal.'" United States v. Dinitz, 424 U.S. 600, 607-08, 96 S. Ct. 1075, 1080, 47 L. Ed. 2d 267, 274 (1976).

"Given these concerns, the [United States] Supreme Court has established a stringent test for determining whether retrial can be had after mistrial." Gallegan, 117 N.J. at 352. "There must be a manifest necessity where the court acts sua sponte." State v. Rechtschaffer, 70 N.J. 395, 409 (1976); accord Dinitz, supra, 424 U.S. at 608, 96 S. Ct. at 1080, 47 L. Ed. 2d at 274. "[I]mproper termination of a defendant's trial after jeopardy attaches bars retrial." Allah, supra, 170 N.J. at 285. The trial court's "discretion is exercised improperly . . . if the court has an appropriate alternative course of action," id. at 281, such as an "instruction to the jury," Rechtschaffer, supra, 70 N.J. at 415.

Here, defendant succeeded in getting the court to dismiss one of the two counts of the indictment right before summations. The prosecutor complained the court "just gutted my case," and protested, "I don't get how you expect me to give a closing statement, judge." With the prosecution scrambling to react, defendant asked the court to proceed with trial and instruct the jury that half of the counts and the 404(b) evidence were now excluded from the case, rather than request a mistrial and risk a new trial. Defendant cannot choose to continue with that jury, "'request the trial court to take a certain course of action, . . . take his chance on the outcome of the trial,'" and now claim that continuing with that jury was "'error and prejudicial.'" Baluch, supra, 341 N.J. Super. at 195.

B.

"Even if a party has 'invited' an error, though, courts will not bar defendants from raising an issue on appeal if the particular error . . . cut mortally into the substantive rights of the defendant," and "would cause a fundamental miscarriage of justice." A.R., supra, 213 N.J. at 562 (internal quotation marks omitted). "To justify reversal on the grounds of an invited error, a defendant must show" such extreme prejudice. State v. Ramseur, 106 N.J. 123, 282 (1987).

We must hew to that extraordinarily limited standard for reversal. Here, defendant cannot show the jury convicted him of peering based on the 404(b) evidence, because of the trial court's clear and repeated instructions to the jury that it could not consider the 404(b) evidence for that purpose, or indeed at all.

When the trial court admitted the 404(b) evidence, it read the jury the Model Jury Charge (Criminal), "Proof of Other Crimes, Wrongs, or Acts" (2007), which advises:

Normally, such evidence is not permitted under our rules of evidence. Our
rules specifically exclude evidence that a defendant has committed other crimes, wrongs, or acts when it is offered only to show that he[] has a disposition or tendency to do wrong and therefore must be guilty of the charged offenses.
The court instructed the jury it could use the 404(b) evidence only to show defendant's "purpose to expose himself January 6th for his sexual gratification," which was relevant only to lewdness. The court emphasized: "You may not consider it for any other purpose and may not find the defendant guilty now simply because the State has offered evidence that he committed these other two acts at other times." The court told the jurors they "may not use this evidence to decide that [defendant] has a tendency to commit crimes or that he's a bad person," or that "therefore he must be guilty of the offense that he's charged with here."

Defendant claims two errors regarding this instruction, which addressed the 404(b) evidence from both Wells and Officer Freund. First, defendant complains that the court did not give this instruction until it admitted the officer's testimony on the morning after Wells's testimony. Second, defendant notes that the transcript of the court's reading of the model instruction has the court saying "include" rather than "exclude." Even if the transcription was accurate, these alleged errors are of no moment given the court's subsequent instructions, which required the total exclusion of the 404(b) evidence. See State v. Cusick, 219 N.J. Super. 452, 467 (App. Div.) (delay in giving the 404(b) limiting instruction was cured by subsequent instruction), certif. denied, 109 N.J. 54 (1987).

After dismissing the fourth-degree lewdness count at the close of the evidence, the court gave the instruction requested by defendant, namely the dismissal portion of the Model Jury Charge (Criminal), "Addition or Dismissal of Charges" (2003). In particular, the court told the jurors that it had "ruled that the original charge of lewdness will not be submitted to you for your consideration," that only the peering charge would be submitted to the jurors, and that they "must decide [whether] the State has proven the guilt of the defendant on the charge submitted to you by the evidence which is relevant and material to that particular charge based on final instructions of the law that I will give you after the attorneys have completed their summations."

The court then gave the instruction requested by defendant telling the jury to disregard the 404(b) evidence:

You are not to consider that evidence for any purpose because it's not relevant to the elements of the crime of peering which you will be considering. That evidence at the time was admitted because arguably it had some relevance to the lewdness charge but you will not be considering the lewdness charge so you can not consider for any purpose that specific testimony by Mr. Wells and by Officer Freund as it relates to prior conduct and conduct after the arrest.

In summation, defense counsel reiterated to the jurors the 404(b) evidence was "not before you. You're not going to consider that." The prosecutor did not mention the 404(b) evidence in summation. Moreover, neither counsel had mentioned the 404(b) evidence in the openings.

The court then gave the Model Jury Charge (Criminal), "Criminal Final Charge" (2002). The court instructed the jurors:

Any testimony that I had occasion to strike is not evidence and shall not enter in your final deliberations. It must be disregarded by you. This means that even though you may remember the testimony you are not to use it in your discussions or deliberations. Further, if I gave a limiting instruction as to how to use certain evidence, that evidence must be considered by you for that purpose only. You cannot use it for any other purpose.
The court then made clear it had struck the specified testimony from Wells and Officer Freund,
so that testimony must be disregarded by you. As you remember it you are not to use it in your discussions or deliberations because it has nothing to do with this case. It has nothing to do with the elements of the charge that I will instruct you on that you will be considering.
The court then instructed on the elements of peering.

"One of the foundations of our jury system is that the jury is presumed to follow the trial court's instructions." State v. Burns, 192 N.J. 312, 335 (2007). "We hold in high regard the capacity and integrity of juries," and their capability "of following the trial court's curative instruction." Mahoney v. Podolnick, 168 N.J. 202, 222 (2001). "'We act on the belief and expectation that jurors will follow the instructions given them by the court.'" State v. T.J.M., ___ N.J. ___, ___ (2015) (slip op. at 23).

For example, in State v. Winder, 200 N.J. 231 (2009), the jury heard "testimony about defendant's prior drug-dealing [which] was not admissible for any permitted purpose under Rule 404(b)." Id. at 256. The trial court told the jury "to disregard [the] testimony concerning any of defendant's prior crimes or bad acts," and "not to use the testimony 'to form some kind of an opinion' that defendant was a 'bad person' and that he therefore was guilty of the crimes charged." Id. at 255-56. The Supreme Court held "[d]efendant's claim that, notwithstanding the limiting instruction, the testimony had a 'devastating prejudicial impact' lacks merit. We presume that the jury followed the instruction accurately." Id. at 256.

New Jersey courts have admitted sexual conduct evidence under N.J.R.E. 404(b) that is more inflammatory than the 404(b) evidence here. State v. Covell, 157 N.J. 554, 561, 566-67, 571 (1999) (propositioning another young girl and admitting interest in young girls). In those cases, the courts found instructions limiting the permissible uses of the evidence avoided any "'real possibility for prejudice.'" E.g., Cusick, supra, 219 N.J. Super. at 467. Here, the jurors received not only a limiting instruction but also several powerful curative instructions requiring them to ignore the 404(b) evidence entirely. Those "firm, clear," and repeated instructions identified with "specificity" the testimony the jurors had to disregard. Cf. State v. Vallejo, 198 N.J. 122, 134-37 (2009) (finding inadequate court's single instruction which did not identify what information the jury could not use).

E.g., State v. Stevens, 115 N.J. 289, 294-97, 306-07 ( 1989) (compelling women to undress and have sex, and seeking sexual favors); State v. Hackett, 323 N.J. Super. 460, 468-69, 482-83 (App. Div. 1999) (masturbation in public), aff'd as modified, 166 N.J. 66 (2001); State v. Zeidell, 299 N.J. Super. 613, 617-18 (App. Div. 1997) (lewdness convictions for exposing genitals to a young girl, and masturbation in public), rev'd on other grounds, 154 N.J. 417 (1998); Cusick, supra, 219 N.J. Super. at 454, 464-66 (sexually assaulting young girls).

There was no indication the jury did not follow those instructions. During deliberations, the jury's only request was for the court to reread the elements of peering.

In denying defendant's motion for new trial, the trial court cited its instructions and found no manifest denial of justice. "An appellate court should defer to the decision of the trial court, which is in the best position to gauge the effect of the allegedly prejudicial evidence." State v. Harvey, 151 N.J. 117, 205 (1997).

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[.]



[State v. Winter, 96 N.J. 640, 646-47 (1984).]
Here, we give deference to the trial court's superior vantage to gauge the effect of prejudicial testimony "on the jury in the overall setting," and its determination that there was no manifest denial of justice. Ibid.

We acknowledge that the 404(b) evidence described distasteful conduct by defendant. We also recognize that the normal presumption that jurors follow the court's instructions "is not inviolate." State v. Bey, 112 N.J. 45, 81 (1988). However, defendant must present "evidence demonstrating otherwise." State v. Montgomery, 42 7 N.J. Super. 403, 410 (App. Div. 2012), certif. denied, 213 N.J. 387 (2013). Moreover, defendant must overcome the strict standard of review for reversal on his own invited error. See Ramseur, supra, 106 N.J. at 281-82.

Defendant has failed to carry his heavy burden to show that the jurors disregarded the court's repeated and emphatic instructions that the 404(b) evidence had no relation to the remaining peering count and had to be totally disregarded. Those instructions were sufficient to dispel any reasonable possibility of prejudice. Thus, "we are convinced that this case presents no fundamental injustice that would warrant relaxing the invited error doctrine." M.C. III, supra, 201 N.J. at 342.

III.

Defendant next claims the trial court erred in admitting defendant's statement to Wells: "I've been through this before. I'm sorry [that I did it]. It won't happen again." When the prosecutor gave pretrial notice of defendant's statement to the court, the court asked if the defense would be making "an in limine application to exclude that statement." Defense counsel replied "no," adding, "I think that goes to [defendant's] state of mind at the time of the incident so I don't think it's going to be excluded." Defense counsel did not object when Wells testified to defendant's statement. Indeed, counsel again elicited defendant's statement when cross-examining Wells about his statement to the police.

Before trial, defense counsel asked for a Rule 104 hearing to determine whether defendant had voluntarily made the statement. However, on appeal, defendant does not claim that a Rule 104 hearing should have been held or that defendant was coerced. Cf. State v. Marczak, 344 N.J. Super. 388, 396-97 (App. Div. 2001), certif. denied, 171 N.J. 44 (2002).
--------

Here too, defendant invited what he now claims was error. When the court asked if defendant wished to exclude the statement, "[d]efense counsel made the decision to refrain from objecting," explained why the statement was admissible, and then attempted to use the statement. See Williams, supra, 219 N.J. at 101 (finding the defendant invited error when defense counsel said "I don't object to the doctor testifying in that way"); M.C. III, supra, 201 N.J. at 340 (finding the defendant invited error when defense counsel said "No objection" to an exhibit); State v. Kemp, 195 N.J. 136, 155 (2008) (finding the defendant invited error when defense counsel said "he saw 'no problem with that [testimony] because I'm going to go into it because I think it's clearly coming in'"). "The invited-error doctrine is intended to 'prevent defendants from manipulating the system' and will apply 'when a defendant in some way has led the court into error' while pursuing a tactical advantage that does not work as planned." Williams, supra, 219 N.J. at 100. Thus, "defendant is barred by the doctrine of invited error from contesting for the first time on appeal the admission of" his statement. M.C. III, supra, 201 N.J. at 342.

Defendant fails to show that the invited error of admitting this vague statement "would 'cause a fundamental miscarriage of justice.'" Williams, supra, 219 N.J. at 100. Defendant cites the prosecutor's summation, but the prosecutor properly referenced defendant's entire statement to Wells only as "an admission that shows consciousness of guilt."

Defendant complains the trial court did not give the instructions described in State v. Kociolek, 23 N.J. 400 (1957), and State v. Hampton, 61 N.J. 250 (1972). See Model Jury Charge (Criminal), "Statements of Defendant" (2010). However, defendant never requested those instructions. Moreover, a Hampton instruction "is not required when a defendant has allegedly made a voluntary inculpatory statement to a non-police witness without being subjected to any form of physical or psychological pressure." State v. Baldwin, 296 N.J. Super. 391, 398 (App. Div.), certif. denied, 149 N.J. 143 (1997). Also, "there is no 'reported case in which a failure to include [the Kociolek] principles within a trial court's final charge has been held plain error.'" Id. at 400. Here, the absence of those instructions "was not clearly capable of producing an unjust result." State v. Harris, 156 N.J. 122, 183 (1998); see State v. Wilson, 335 N.J. Super. 359, 367-68 (App. Div. 1999).

Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.

CLERK OF THE APPELLATE DIVISION


Summaries of

State v. Harchar

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
Mar 6, 2015
DOCKET NO. A-4064-12T1 (App. Div. Mar. 6, 2015)
Case details for

State v. Harchar

Case Details

Full title:STATE OF NEW JERSEY, Plaintiff-Respondent, v. JOHN HARCHAR, a/k/a BUTCH…

Court:SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Date published: Mar 6, 2015

Citations

DOCKET NO. A-4064-12T1 (App. Div. Mar. 6, 2015)