NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
PER CURIAM.
Defendant appeals from his convictions for first-degree robbery, second-degree conspiracy to commit robbery, second-degree burglary, second-degree conspiracy to commit burglary, third-degree unlawful possession of a weapon for an unlawful purpose, and fourth-degree unlawful possession of a knife. The robbery, burglary, and in-court identification charges were flawed and contributed to an unjust and unwarranted result. We reverse.
On September 17, 2007, at 9:00 p.m., two men entered the victim's home through the back door. She recognized the first man as co-defendant Robert Schaub, but did not know the second person, later identified as defendant. The victim testified that defendant possessed a "pointy" object and held it down to his side. The victim did not know what the object was. Although neither man said anything when they entered the residence, the victim was afraid and concerned for the safety of her seventy-year-old mother who also occupied the residence. Defendant approached her mother, the victim screamed as defendant grabbed two pocketbooks hanging on a chair, and both men ran out of the home. The victim chased both men, yelled for them to stop, and then returned to her mother who had called the police. The men continued to flee.
Schaub pled guilty to second-degree conspiracy to commit robbery. He received a six-year prison sentence with eighty-five percent parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and testified as a witness for the State. Schaub testified that he acted as a look-out while defendant stole the pocketbooks.
Defendant did not testify at trial. His girlfriend testified that defendant was with her in an apartment complex next to the victim's home, except for a brief period of time when defendant went to a neighbor's apartment for a cigarette.
The jury convicted defendant on all charges. The judge granted the State's motion to sentence defendant to an extended term pursuant to N.J.S.A. 2C:43-7.1b(2). He merged all of the counts into the robbery conviction and imposed a twenty-year prison term with eighty-five percent parole ineligibility subject to NERA. This appeal followed.
On appeal, defendant raises the following points:
POINT I
THE JUDGE'S INSTRUCTIONS ON ROBBERY WERE FLAWED, AS THEY: FAILED TO GIVE JURORS THE OPTION OF CONVICTING DAVIS OF SECOND-DEGREE ROBBERY; FAILED TO NOTE THAT DAVIS' INTENT WAS CRITICAL TO DETERMINING WHETHER HE WAS ARMED WITH A "DEADLY WEAPON;" STATED THAT DAVIS WAS GUILTY OF ROBBERY IF HE COMMITTED A THEFT IN THE COURSE OF A THEFT; AND FAILED TO CLARIFY WHO WAS THE ALLEGED VICTIM OF THE ROBBERY. THE VERDICT SHEET MADE MATTERS WORSE, PERMITTING AN ARMED ROBBERY CONVICTION EVEN IF JURORS FAILED TO FIND THAT DAVIS WAS ARMED. (Not Raised Below)
A. The Judge Should Have Instructed Jurors That They Could Convict Davis of SecondD-egree Robbery
B. The Judge Erroneously Informed Jurors That Davis Was Guilty of Robbery if He Committed a Theft in the Course of Committing a Theft
C. The Robbery Charge Was Confusing, Because it Was Not Tailored to the Evidence and Created the Possibility that Jurors Determined that Marks' Mother, Rather than Marks, Was the Victim
D. The Portion of the Charge Addressing the Issue of "Armed" Robbery was Flawed Because it Did Not Address the Fact That Jurors Were to Consider a Defendant's Intent in Determining Whether a Kitchen Knife Is a Deadly Weapon
E. The Verdict Sheet Was Deficient Because it Permitted a First-Degree Conviction in the Absence of a Finding That Davis Was Armed with a Deadly Weapon
F. The Aforementioned Errors Require a Reversal of the Robbery and Conspiracy-toR-ob Convictions
POINT II
THE BURGLARY AND CONSPIRACY TO COMMIT BURGLARY CONVICTIONS MUST BE REVERSED BECAUSE THE JUDGE FAILED TO PROVIDE JURORS THE OPTION TO CONVICT ON THIRD-DEGREE BURGLARY AND FAILED TO PROPERLY DEFINE KEY TERMS SUCH AS "RECKLESS," "ATTEMPT," AND "ARMED WITH A DEADLY WEAPON." (Not Raised Below)
POINT III
THE COURT'S INSTRUCTIONS REGARDING THE IN-COURT IDENTIFICATION WERE MISLEADING, AS THEY FOCUSED ON FACTORS THAT WERE IRRELEVANT AND FAILED TO MENTION THE CRITICAL CONSIDERATIONS THAT SUGGESTED THAT THE VICTIM'S IDENTIFICATION OF DAVIS MAY HAVE BEEN MISTAKEN. (Not Raised Below)
A. Introduction
B. The Henderson Report
C. Schaub's Testimony Should Not Have Been Treated as an Identification, as Schaub Was a Co-defendant Who Knew Davis
D. The Charge Focused on Three Factors that Social Science has Deemed Unreliable
E. The Charge Focused on Factors that Are Only Relevant to Situations in which There Has Been a Suggestive Out-of-court Identification
F. The Charge Failed to Focus on Factors that Social Science Reveal to be Critical to a Determination of Accuracy
G. The Charge was Not Tailored to the Facts of This Case
H. The Errors in the Charge Require a Reversal of Davis's Convictions
POINT IV
THE PROSECUTOR FAILED TO LAY A PROPER FOUNDATION FOR THE VICTIM'S ABILITY TO MAKE AN IN-COURT IDENTIFICATION, AND THE JUDGE SHOULD NOT HAVE PERMITTED AN IDENTIFICATION TO BE MADE ABSENT A HEARING. (Not Raised Below)
POINT V
THE TRIAL COURT ERRED IN FAILING TO INSTRUCT THE JURORS ON AN ALIBI DEFENSE AND DEFENSE COUNSEL WAS INEFFECTIVE IN FAILING TO REQUEST AN ALIBI INSTRUCTION. (Not Raised Below)
POINT VI
THE TRIAL COURT'S FAILURE TO INSTRUCT THE JURY TO LIMIT USE OF THE CO-DEFENDANT'S GUILTY PLEA TO ASSESSING CREDIBILITY AND TO BAR ITS USE AS SUBSTANTIVE EVIDENCE OF THE DEFENDANT'S GUILT VIOLATED THE DEFENDANT'S RIGHT TO A FAIR TRIAL AND DUE PROCESS OF LAW. (Not Raised Below)
POINT VII
THE JUDGE'S CHARGE REGARDING LESSER-INCLUDED OFFENSES IMPROPERLY SUGGESTED THAT SUCH OFFENSES WERE NOT OF EQUAL WEIGHT TO THE OFFENSES CHARGED IN THE INDICTMENT. (Not Raised Below)
POINT VIII
DEFENDANT'S CONVICTIONS SHOULD BE REVERSED ON THE BASIS OF CUMULATIVE ERROR. (Not Raised Below)
It is well-settled that appropriate and proper jury charges are essential in a criminal case to assure a fair trial. State v. Reddish, 181 N.J. 553, 613 (2004); State v. Green, 86 N.J. 281, 287 (1981). When a defendant identifies an error in the charge, we must evaluate the charge in its entirety. State v. Figueroa, 190 N.J. 219, 246 (2007); State v. Wilbely, 63 N.J. 420, 422 (1973).
Although a flawed jury charge is a poor candidate for rehabilitation or the application of the harmless error rule, State v. Simon, 79 N.J. 191, 206 (1979), a defendant must still demonstrate that the error affected the outcome of the jury's deliberations. State v. Jordan, 147 N.J. 409, 422 (1997). When a defendant fails to object to the alleged error at trial, we must apply the plain error standard of review.
Here, defendant failed to object to the charge; therefore, we must determine whether any error contributed to an unjust and unwarranted result. R. 2:10-2; State v. Macon, 57 N.J. 325, 333, 337-38 (1971).
I
On the robbery charge, the judge failed to (1) charge second-degree robbery as a lesser-included offense, (2) define "deadly weapon," and (3) otherwise follow the model jury charge. These errors possessed the clear capacity to contribute to an unjust result.
"[C]ourts are required to instruct the jury on lesser-included offenses only if counsel requests such a charge and there is a rational basis in the record for doing so[;] or, in the absence of a request, if the record clearly indicates a charge is warranted." State v. Denofa, 187 N.J. 24, 42 (2006) (second emphasis added) (citing State v. Garron, 177 N.J. 147, 180 n.5 (2003), cert. denied, 540 U.S. 1160, 124 S.Ct. 1169, 157 L. Ed. 2d 1204 (2004)); Accord, State v. Walker, 203 N.J. 73, 87 (2010); see also N.J.S.A. 2C:1-8(e). Here, no request was made at trial to charge second-degree robbery as a lesser-included offense to first-degree robbery. Regardless of whether a defendant requests such an instruction, the judge must instruct the jury on a lesser-included offense if the facts "clearly indicate that a jury could convict on the lesser while acquitting on the greater offense." State v. Jenkins, 178 N.J. 347, 361 (2004).
Here, the facts clearly indicate that a charge for second-degree robbery as a lesser-included offense was warranted. Robbery is a crime of the second degree, but is a crime of the first degree "if in the course of committing the theft the actor. . . is armed with, or uses or threatens the immediate use of a deadly weapon." N.J.S.A. 2C:15-1b. The victim was unable to identify the object in defendant's hand as a weapon. The judge acknowledged that "it's a jury question whether [the victim] recognized [the "long and pointy" object] as a weapon; whether [the victim] was put in fear of it . . . ." If the jury concluded that the object was not a weapon, they could still determine that the victim was put in fear of bodily injury by the mere presence of two men who entered her residence without permission through the back door at 9:00 in the evening. Thus, the jury could acquit on first-degree robbery and convict on second-degree robbery.
The judge determined that the record supported a lesser-included offense, but he charged only third-degree theft. We discern that he charged theft, as a lesser-included offense, because the jury could find that defendant did not possess a weapon. Under that rationale, it was plain error not to charge second-degree robbery as well.
Moreover, as part of the robbery charge, the judge did not define "deadly weapon." The failure to define that term prevented the jury from understanding an element of first-degree robbery. "[T]he failure to charge the jury on an element of an offense is presumed to be prejudicial error, even in the absence of a request by defense counsel." State v. Federico, 103 N.J. 169, 176 (1986); State v. Grunrow, 102 N.J. 133, 148 (1986). The Court has explained:
The traditional function of the judge is to instruct the jury as to the law governing the issues to be decided by them under the facts of the particular case. The classical practice generally followed in criminal cases is for the judge to outline the applicable law, explaining and defining the offense charged, and the jury, thus becoming informed as to the exact law which they must decide has or has not been violated, places its determination of the facts alongside the law and decides whether its verdict shall be guilty or not guilty. .. . To fail to define the offense attributed to the accused and the essential elements which constitute it, is to assume that jurors are educated in the law — an assumption which no one would undertake to justify. On the contrary, the appearance of a person with legal training on the jury panel would be a rarity. The criminal law cannot be administered justly or efficiently if the jury is allowed to speculate as to what conduct the law intended to proscribe by a specified crime. Accordingly, we hold the view that a mandatory duty exists on the part of the trial judge to instruct the jury as to the fundamental principles of law which control the case. Among such principles is the definition of a crime, the commission of which is basic to the prosecution against the defendant.
[State v. Butler, 27 N.J. 560, 594-95 (1958).]
To aid the jury in understanding the definition of first-degree robbery, the model jury charge defines "deadly weapon" as:
any firearm or other weapon, device, instrument, material or substance . . . which in the manner it is used or intended to be used, is known to be capable of producing death or serious bodily injury or which in the manner it is fashioned would lead the victim reasonably to believe it to be capable of producing death or serious bodily injury.
[Model Jury Charge (Criminal), "Robbery in the First Degree" (2010) (emphasis added).]
By omitting the definition, the jury was required to speculate about the meaning of "deadly weapon," an essential element of the charge.
Finally, the judge was required to select from the following choices from the model jury charge:
2. that while in the course of committing that theft the defendant
a. knowingly inflicted bodily injury or used force upon another.
b. threatened another with or purposely put (him/her) in fear of immediate bodily injury.
c. committed or threatened immediately to commit the crime of [first or second degree].
[Model Jury Charge (Criminal), "Robbery in the First Degree" (2010).]
The judge selected all three, required that the jury must find both 2a and 2b, and referenced a third-degree crime — theft — concerning 2c, rather than a crime of the first or second degree. At the end of the robbery charge, the judge asked for a side bar conference because he understood, based on the charge conference conducted partially on the record, that the parties requested that he read only 2b. The judge stated that he was "concerned [because] I read [the charge] confusingly." During deliberations, the jury was also confused and asked the court to "re-explain robbery in layman's terms." In his re-charge, the judge included all three sections, substituted "any crime of the first or second degree" in place of theft, and — as the assistant prosecutor stated — "hinted that [the jury] had the option of finding [defendant guilty] under second-degree." The judge did not, however, instruct the jury that it must find defendant guilty of second-degree robbery, if it found that the State had not proven beyond a reasonable doubt that defendant was armed with, or used or purposely threatened the immediate use of a "deadly weapon." In other words, if the jury did not find that defendant used the knife as a deadly weapon, then it must acquit of first-degree robbery. Even though the judge "hinted" that second-degree robbery was an option, it was not included on the verdict sheet.
II
We find that the judge also committed plain error concerning the burglary charge. The judge omitted the definitions of "armed with," "recklessly," and "attempt," and although he charged third-degree burglary as a lesser-included offense, the verdict sheet did not provide for that option.
The judge charged the jury that
A person is guilty of burglary in the third-degree if with purpose to commit an offense therein the person enters a structure or surreptitiously remains in a structure and is not licensed or privileged to do so. That person is guilty of burglary in the second-degree if in the course of committing the offense I have just described to you that person purposefully, knowingly or recklessly inflicts, attempts to inflict or threatens to inflict bodily injury on anyone; or is armed with or displays what appears to be a deadly weapon.
The question on the verdict sheet concerning burglary stated
On or about the 17th day of September, 2007 . . . defendant did unlawfully enter the structure of [the victim] . . . with the purpose to commit an offense therein; and in the course of committing the offense did,
a.) Purposely, knowingly, or recklessly inflict, attempted to inflict or threatened to inflict bodily injury on [the victim;] or
b.) Was armed with or displayed what appeared to be a deadly weapon — to wit a knife.
Sections a and b pertain to burglary in the second-degree. Although the verdict sheet contained a lesser-included offense of criminal trespass, the jury was unable to record a verdict of guilty to the lesser-included offense of third-degree burglary because the verdict sheet omitted any such option.
The judge charged the jury that "[i]n this case the State alleges that defendant was armed with or displayed what appears to be a deadly weapon." He omitted to then read
In order for defendant to be guilty of being "armed with" . . . a deadly weapon, however, the State must prove not only possession but also immediate access to that. . . deadly weapon. The State must prove beyond a reasonable doubt that the weapon was easily accessible and readily available for use during the burglary.
[Model Jury Charge (Criminal), "Burglary in the Second Degree" (2010).]
Similarly, the judge charged the jury,
If you find beyond a reasonable doubt that the defendant committed the crime of burglary or in the course of committing that offense he . . . recklessly inflicted or purposely intended to inflict or threatened to inflict bodily injury upon the victim, .. . then you must find the defendant guilty of burglary in the second degree.
He did not define "recklessly."
Finally, the judge charged the jury that "burglary becomes a crime of the second-degree if the burglar . . . attempts to inflict or threatens to inflict bodily injury . . . . " He omitted to read, however, the definition of "attempt," which is "[a] person is guilty of an attempt to inflict bodily injury if (he/she) purposely commits an act which constitutes a substantial step toward the commission of the infliction of bodily injury." Model Jury Charge (Criminal), "Burglary in the Second Degree" (2010). "[T]he failure to charge the jury on an element of an offense is presumed to be prejudicial error, even in the absence of a request by defense counsel." Federico, supra, 103 N.J. at 176.
III
We agree with defendant that the judge listed several irrelevant factors when he charged the jury on identification. There is no evidence to suggest that either Schaub or the victim identified defendant out-of-court. Nevertheless, the charge focused on a non-existent out-of-court identification.
The judge charged that, in deciding what weight to give to the identification testimony, the jury may consider "the circumstances under which the identification was made and whether or not it was the product of a suggestive procedure including anything done or said by law enforcement to the witness before, during or after the identification process." He then stated:
In making this determination, you may consider the following circumstances: Whether anything was said to the witness prior to viewing a photo array, line-up or show-up; whether a photo array shown to the witness contained multiple photographs of the defendant; whether all in the line-up but the defendant were known to identifying witnesses; whether the other participants in the line-up were grossly dissimilar in appearance to defendant, whether only the defendant was required to wear distinctive clothing which the culprit allegedly wore; whether the witness is told by the police they have caught the culprit after which the defendant is brought before the witness alone or in jail; whether the defendant is pointed out before or after the line-up; whether the witness' identification was made spontaneously and remained consistent thereafter; whether the individual conducting the line-up either indicated to the witness that a suspect was present or failed to warn the witness that the perpetrator may or may not be in the procedure; whether the witness was exposed to opinions, descriptions of identifications given by other witnesses to photographs or newspaper accounts or to any other information or influence that may have affected the independence of his or her identification.
These factors, however, were inapplicable. Furthermore, the victim's in-court identification of defendant was inherently suggestive; yet the trial judge provided no guidance to the jury to evaluate this circumstance.
Schaub testified that he knew defendant for a couple of months before the incident. Although the victim attempted to identify defendant out-of-court, she was unable to do so. About three months after the incident, an investigator conducted a photographic array with the victim at the prosecutor's office. The investigator showed the victim eight photographs twice, but the victim was unable to identify anyone. It was not until fourteen months after failing to identify defendant at the prosecutor's office, that the victim identified defendant for the first time at trial while defendant was seated at the counsel table. Thus, the identification charge was confusing and contributed to an unjust and unwarranted result.
IV
We have carefully reviewed the record and the arguments presented by counsel and conclude that the remaining issues presented by defendant are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Reversed.
