Before Judges Brochin, Kleiner and Steinberg.
The opinion of the court was delivered by: Steinberg, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: November 10, 1998
On appeal from the Superior Court of New Jersey, Law Division, Cumberland County.
Following a trial by jury, defendant Vernon Green was convicted of second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count one); third-degree aggravated assault on a police officer, N.J.S.A. 2C:12- 1(b)(5) (count two); second-degree eluding a law enforcement officer, N.J.S.A. 2C:29-2(b) (count three); and second-degree aggravated assault while eluding a law enforcement officer, N.J.S.A. 2C:12-1(b)(6) (count four).
The trial Judge sentenced defendant to ten years of imprisonment with a five-year period of parole ineligibility on count one to run consecutively to a sentence defendant was then serving; a concurrent five-year term of imprisonment on count two; a concurrent ten-year term of imprisonment on count three; and a concurrent ten-year term of imprisonment on count four. The appropriate monetary penalties were also assessed. However, on count four the trial Judge neglected to impose the mandatory drivers license revocation prescribed by 2C:29- 2(b).
On appeal defendant raises the following issues:
"POINT I THE TRIAL COURT'S REFUSAL TO CHARGE THE JURY ON THE DEFENSE OF DEFENDANT'S INTOXICATION AT THE TIME OF THE OFFENSE DEPRIVED DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO DUE PROCESS AND A FAIR TRIAL. (U.S. CONST., AMENDS. V, VI, XIV; N.J. CONST. (1947), ART. I, PARS. 1, 9, 10).
POINT II THE TRIAL COURT SHOULD HAVE ENTERED A JUDGMENT OF ACQUITTAL ON THE CHARGE OF SECOND-DEGREE AGGRAVATED ASSAULT SUA SPONTE BECAUSE THE STATE FAILED TO PROVE, BEYOND A REASONABLE DOUBT, THAT DETECTIVE FELICE HAD SUFFERED SERIOUS BODILY INJURY.
POINT III IN A CASE WHERE DETECTIVE FELICE'S INJURIES WERE CAUSED BY HIS OWN ACTIONS, IT WAS PLAIN ERROR FOR THE TRIAL COURT NOT TO CHARGE THE JURY ON CAUSATION. (NOT RAISED BELOW).
POINT IV THE TRIAL COURT ERRED BY FAILING TO INSTRUCT THE JURY ON THE LESSER-INCLUDED OFFENSE OF SIMPLE ASSAULT, THUS DEPRIVING HIM OF A FAIR TRIAL. (U.S. CONST. AMENDS. VI, XIV; N.J. CONST. (1947), ART. I, PARS. 1, 9, 10)(NOT RAISED BELOW).
POINT V THE PROSECUTOR'S MISCONDUCT BOTH DURING TRIAL AND IN SUMMATION DENIED MR. GREEN A FAIR TRIAL, IN VIOLATION OF THE CONSTITUTIONS OF THE UNITED STATES AND NEW JERSEY. U.S. CONST. AMENDS. V, VI, XIV; N.J. CONST. ART. I, ¶¶ 1, 9, 10 (NOT RAISED BELOW).
POINT VI IF A JUDGMENT OF ACQUITTAL IS NOT ENTERED ON COUNT ONE, DEFENDANT'S CONVICTION FOR SECOND-DEGREE AGGRAVATED ASSAULT MUST BE MERGED WITH THAT FOR SECOND-DEGREE AGGRAVATED ASSAULT WHILE ELUDING, TO PREVENT VIOLATION OF HIS RIGHT TO BE FREE OF DOUBLE PUNISHMENT UNDER THE STATE AND FEDERAL CONSTITUTIONS (NOT RAISED BELOW).
POINT VII BECAUSE THE JUDGE FAILED TO PROPERLY WEIGH THE AGGRAVATING AND MITIGATING CIRCUMSTANCES, DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE."
We conclude that the independent and cumulative effect of the failure of the trial Judge to charge the jury regarding causation on count one, see N.J.S.A. 2C:2-3, as well as the failure of the trial Judge to limit the jury's consideration on count one to an attempt to cause serious bodily injury, and the failure of the trial Judge to charge the lesser-included offense of simple assault, N.J.S.A. 2C:12- 1(a)(1) on count two, deprived defendant of his constitutional right to a fair trial on those counts. See State v. Orecchio, 16 N.J. 125, 129- 30 (1954). Those errors were clearly capable of producing an unjust result regarding the convictions on counts one and two, and we reverse those convictions. We also reverse the conviction on count four due to the absence of a charge on that count. We affirm the conviction on count three.
According to the State's proofs, on November 10, 1995, Millville Detectives Don Felice, Robert Chard, and Ron Harvey, all of whom testified against defendant, were conducting a surveillance operation at 46 North Third Street, the location of a known crack house. The detectives observed defendant drive up to the house in a red Mitsubishi sports car, enter the house for five or ten minutes, and return to his car. They recognized defendant from past surveillance and encounters with him, and began to follow him as he departed. Defendant pulled into a well-lit parking lot at the Elks Lodge approximately fifteen or twenty yards from a public telephone. The detectives followed defendant into the parking lot and parked their unmarked car in front of defendant's vehicle "nose-to-nose". Although all three detectives were in plain clothes, Felice said he was wearing a police jacket with the word "police" displayed on the rear and right chest area of the jacket. The detectives exited the undercover vehicle. Felice approached the driver's side of defendant's car. According to Felice, he identified himself as a police officer and, when he was twelve to eighteen inches from defendant's vehicle, displayed his badge and told defendant he would like to speak to him. Felice claimed that as he displayed his badge defendant put his vehicle in reverse and "peeled" backward quickly.
Felice testified that he ran after the car, shouting "police, stop the car, Vernon, stop the car" . Nevertheless, defendant drove forward and the vehicle struck Felice in the left leg causing him to experience some pain in the leg. Felice continued to run alongside defendant's car and punched his right hand through the driver's side window, shattering the window and cutting his hand. His purpose was to gain entry into the vehicle to shut the ignition off. With the window broken, Felice testified that he continued shouting to defendant, "police, stop the car, Vernon". Defendant's vehicle was moving quickly and Felice rolled off onto the ground. Felice was later taken by ambulance to a hospital where it was determined that he had suffered lacerations to both hands, cuts to some of his fingers, and a bruise on his left leg. He was left with a scar on his palm approximately an inch and a half long. On cross-examination, Felice conceded that when his vehicle parked in front of defendant's vehicle, the police car's headlights may have been in defendant's eyes. On cross-examination Felice also said that once the window was broken he was no more than six inches from defendant, shouting in a loud voice, identifying himself as a police officer, and commanding defendant to stop the vehicle. Detectives Chard and Harvey testified and corroborated Felice's version of the incident. Harvey remained with Felice at the parking lot and Chard pursued defendant. A high speed chase ensued, at times at speeds of up to eighty miles per hour, on a winding, residential road. At one point defendant forced two cars off the road; at another point he forced a car into the other lane of travel. Chard was joined by two backup vehicles. The chase ended when defendant stopped. Chard pulled in front of defendant with his vehicle and blocked him, and defendant was apprehended.
According to Chard, at the station defendant said he fled because he thought the police were drug dealers who were after him. However, Chard also testified that defendant later changed his story, admitting that he recognized Chard when he first approached defendant in the parking lot. Chard further testified that he had seen defendant approximately fifty times over the course of fifteen years and defendant knew that he was a police officer.
Defendant testified that he had argued with his wife that evening and was upset when he left home. He admitted going to the crack house and smoking crack cocaine because he was depressed. He said he went to the Elks Lodge parking lot to telephone his wife. According to defendant he began to gather his thoughts as to what he would say to his wife when a vehicle pulled up behind him. He said he saw one individual get out and approach his car. He claimed to have been startled because the vehicle came up behind him quickly. Defendant said his window was up and his radio was playing loudly. He saw the person run towards his car but denied hearing him say anything to him. He put his car in reverse and then started to go forward when the window broke. He claimed he was frightened because he had just left a crack house and had previous altercations with drug dealers. Defendant asserted that he was under the influence of cocaine at the time. He denied that Felice was wearing a police jacket and denied that the detectives had identified themselves or commanded him to stop. He claimed he did not realize they were police officers. He also denied striking Felice with his vehicle and telling Chard at the station that he had recognized Chard at the parking lot.
Prior to summation the Judge conducted a preliminary conference in chambers and then conducted a charge conference on the record. Defense counsel specifically requested a charge on intoxication. See N.J.S.A. 2C:2-8. The basis for that request was that defendant was observed leaving a crack house, that the detectives said they initially approached defendant because they believed his erratic driving was drug- induced, and that defendant testified he had ingested crack cocaine immediately prior to his arrest. The trial Judge denied the request. Defense counsel made no other requests to charge. Specifically, defense counsel did not request the Judge to charge any lesser-included offenses.
We first consider defendant's contention that the trial Judge erred in denying his request to charge the jury on the defense of intoxication. We disagree. Intoxication is a defense if it negates an element of the offense. See N.J.S.A. 2C:2-8(a). A trial court is only required to instruct the jury on intoxication if there is a rational basis for a Conclusion that defendant's faculties were so prostrated that he or she was incapable of forming an intent to commit the crime. See State v. Mauricio, 117 N.J. 402, 418-19 (1990); State v. Cameron, 104 N.J. 42, 58 (1986). There was no rational basis for a Conclusion that defendant had reached that level of intoxication. See State v. Micheliche, 220 N.J. Super. 532, 543 (App. Div.), certif. denied, 109 N.J. 40 (1987), where in rejecting defendant's contention that he was entitled to a charge on intoxication simply because he had consumed large quantities of alcohol, we observed that the degree of intoxication must be such as to bring about so great a prostration of the actor's faculties that the requisite mental state was totally lacking. See also State v. Selby, 183 N.J. Super. 273, 276 (App. Div. 1981), where we observed that defendant's admission that he smoked marijuana and stated that he felt "high" was insufficient to entitle him to a charge on intoxication, particularly since his testimony showed his awareness and recollection in detail of the events of the night in question.
We next consider defendant's contention that the trial Judge should have sua sponte entered a judgment of acquittal on the first count of the indictment which charged defendant with second-degree aggravated assault in violation of N.J.S.A. 2C:12-1(b)(1). We reject that contention. In considering a motion for a judgment of acquittal at the close of the State's case or after all the evidence has been closed, the test is:
"whether, viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt." [State v. Reyes, 50 N.J. 454, 459 (1967). See also R. 3:18-1.]
A person is guilty of second-degree aggravated assault only if, with one of the states of mind prescribed by the statute, he attempts to cause or causes serious bodily injury to another. N.J.S.A. 2C:12- 1(b)(1). Serious bodily injury is defined as "bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ." See N.J.S.A. 2C:11-1(b). The State properly conceded, and we agree, that the injuries suffered by Felice do not meet the statutory definition of serious bodily injury.
However, the State proceeded on the theory that defendant attempted to cause serious bodily injury to Felice. In order to convict a defendant of attempted aggravated assault, the State must prove beyond a reasonable doubt that defendant acted with the culpability required for the crime of aggravated assault, and that defendant acted with the purpose of causing the result that is an element of aggravated assault, namely, serious bodily injury of another. N.J.S.A. 2C:5-1(a)(1) and (2); State v. Robinson, 131 N.J. 484-85 (1994). In viewing the State's evidence in its entirety and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn from that evidence, a reasonable jury could have found defendant guilty of the charge of attempted aggravated assault beyond a reasonable doubt. A jury could have inferred that defendant placed his car in forward gear and drove it towards Felice and intentionally struck him. In addition, the jury could also have found that Felice then ran alongside defendant's car and punched his right hand through the driver's side window. With Felice hanging onto defendant's car, defendant accelerated causing Felice to roll off the car onto the ground. A jury could have concluded from this evidence that defendant's purpose or conscious objective was to cause serious bodily injury to Felice. The trial Judge did not err in not sua sponte dismissing count one of the indictment.
Although we have concluded that the trial Judge did not err in not sua sponte dismissing count one of the indictment, we are nevertheless constrained to reverse the conviction on that count due to an error in the charge. As we have noted, the evidence was insufficient to warrant submission to the jury of the charge of aggravated assault based upon the theory that defendant actually caused serious bodily injury to the victim but was adequate to support conviction of that crime based on the theory that defendant attempted to cause serious bodily injury to Felice. The trial Judge, however, did not limit the jury's consideration on count one to the theory of an attempt to cause serious bodily injury to Felice. Since defendant did not object to the charge or raise this issue on appeal, we consider whether the failure to limit the jury's consideration to the theory of an attempt to cause serious bodily injury was plain error in that it was clearly capable of producing an unjust result. See R. 2:10-2.
Correct jury instructions are essential for a fair trial since they are at the heart of the proper execution of the jury function. See State v. Alexander, 136 N.J. 563, 571 (1994). Accordingly, ordinarily erroneous jury instructions are poor candidates for rehabilitation under the Plain Error Rule. See State v. Burgess, 298 N.J. Super. 254, 271 (App. Div. 1996) aff'd, 154 N.J. 181 (1997). We conclude that the failure of the trial Judge to limit the jury's consideration on count one to a theory of an attempt to cause serious bodily injury to Felice had the clear capacity to confuse the jury and therefore constitutes plain error since it was clearly capable of producing an unjust result. See Conklin v. Hannoch Weisman, 145 N.J. 395, 409 (1996); Ewing v. Burke, 316 N.J. Super. 287 (App. Div. 1998). Accordingly, we reverse the conviction on count one. On retrial of count one, the charge to the jury should focus on an attempt to cause serious bodily injury to Felice. The jury should not be charged alternatively under a theory that defendant actually caused serious bodily injury to Felice.
We next consider defendant's contention that the trial Judge erred in failing to charge the jury on causation. Regarding the charge of aggravated assault, this issue is moot by virtue of our decision that the case should not be presented to the jury on a theory that defendant actually caused serious bodily injury to Felice. However, it is not moot regarding a theory of simple assault. See Part D of this opinion, infra. Defendant did not request a charge on causation either prior to trial pursuant to R. 1:8-7(a) or at the charge conference that was conducted prior to summations pursuant to R. 1:8-7(b). Moreover, although given the opportunity to do so, defendant did not object to the jury instructions for failure to include a specific charge on the question of causation. See R. 1:7-2. The absence of an objection suggests that trial counsel perceived no error or prejudice, and, in any event, prevents the trial Judge from remedying any possible confusion in a timely manner. See State v. Chew, 150 N.J. 30, 82 (1997). A reviewing court may reverse on the basis of unchallenged error only if it finds plain error clearly capable of producing an unjust result. See State v. Afanador, 151 N.J. 41, 54 (1997); R. 2:10-2. However, we agree with defendant that in this case there was a factual issue regarding causation that required the trial Judge to give a fact-specific causation charge, and that her failure to do so was plain error.
A person is guilty of second-degree aggravated assault if he either attempts to cause serious bodily injury to another, or, in fact, causes such injury, either purposely or knowingly, or, alternatively, under circumstances manifesting extreme indifference to the value of human life, recklessly causes such injury. N.J.S.A. ...