On certification to the Superior Court, Appellate Division.
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
In November 2001, a man attacked a seventy-five year old woman, took her pocketbook, and fled to a stolen station wagon driven by defendant Charles Thomas. In the high-speed chase that ensued, Thomas swerved around a police blockade, struck an unmarked police car, swerved in and out of traffic lanes, crossed into incoming traffic, and did not stop until he drove through a red light and struck another vehicle. The man who took the pocketbook was never caught. The police arrested Thomas some two blocks away from where he fled the vehicle. Thomas was indicted on numerous charges arising out of the foregoing incident.
At trial, a detective testified that he spoke with Thomas following his arrest and that Thomas said he didn't mean to ram the officers in their patrol car and that he was just trying to get away. On cross-examination the detective acknowledged that in their conversation Thomas denied he was involved in the robbery. At the close of the evidence, the court conducted a charge conference. Thomas never requested that the trial court charge the jury on hindering apprehension as an included offense of or a related offense to robbery. He also never objected to the trial court's charge in respect of the crime of eluding. The jury convicted Thomas of second-degree robbery, second-degree eluding, third-degree possession of a weapon (a motor vehicle) for an unlawful purpose, fourth degree criminal mischief, fourth-degree resisting arrest, and third-degree receiving stolen property (the station wagon). Thomas was sentenced to an aggregate term of twenty-eight years, with thirteen years of parole ineligibility pursuant to the No Early Release Act.
The Appellate Division concluded that the trial judge's failure to sua sponte provide the lesser offense instruction on hindering apprehension constituted plain error and reversed Thomas's robbery conviction. The panel affirmed Thomas's conviction for second-degree eluding and, because it reversed Thomas's robbery conviction, saw no need to address the sentencing issues in full.
This Court granted both the State's and Thomas's petitions for certification.
HELD: Trial courts are under no obligation to give a "related offense" instruction that is not requested by either the prosecution or the defense. There is no mens rea element to that portion of the eluding statute that enhances a defendant's penal exposure from a third-degree offense to a second-degree if, while knowingly fleeing or attempting to elude any law enforcement officer, the defendant creates a risk of death or injury to any person.
1. We address first the conclusion that the failure of the trial judge to sua sponte provide the lesser offense instruction in respect of the offense of hindering apprehension as a related offense of robbery constituted plain error, requiring reversal of the robbery conviction. As a threshold matter, we distinguish between those charges that are included within the charges in the indictment (included offenses) and those that relate to the charges returned by the grand jury (related offenses). Whether an offense is an included offense of another requires a comparison of the statutory elements of each. On the other hand, whether offenses are related is not a function of a comparison of statutory elements. The focus is whether the offense charged and related offense share a common factual nucleus. (pp. 11-12)
2. Because of constitutional grand jury and notice restrictions, convictions on included offenses different from those explicitly charged in the indictment are allowed only in limited circumstances. Further, we differentiate between those included offense charges requested by the State and those requested by the defense. We restrict prosecution requests for included offense jury charges solely to those offenses that are lesser-included offenses within the meaning of N.J.S.A. 2C: 1-8d. In contrast, when an included offense charge is requested by a defendant, the law's concern is not notice to the defendant but whether the evidence provides a rational basis for the charge. Finally, a trial court has an independent obligation to instruct on lesser-included offense charges when the facts adduced at trial clearly indicate that a jury could convict on the lesser while acquitting on the greater offense. (pp. 13-15)
3. A different analysis obtains when the claim is made that the trial court should instruct the jury in respect of an offense that is related to, but not included within, the offenses charged in the grand jury indictment. Absent a waiver by the defendant, our constitutional guarantee of prosecution only by a grand jury indictment precludes any prosecutorial request for a jury instruction in respect of a related offense. We allow a trial court to instruct the jury on a related charge when two factors coalesce: the defendant requests or consents to the related offense charge, and there is a rational basis in the evidence to sustain the related offense. (pp. 16-17)
4. This appeal presents the question of what the appropriate standard is for gauging whether the trial court sua sponte must charge the jury on a related offense. Neither party requested that the trial court's charge on robbery include the charge of hindering apprehension. Thomas also did not object to the robbery charge. The trial court has no obligation to charge the jury on a related offense that is not requested or consented to by the defense. (pp. 17-19)
5. To trigger a sua sponte requirement for a jury charge, constitutional considerations require that the offense defendant claims should have been charged must be (1) included in the offense actually charged and not simply related to the pattern of events that give rise to the offense charged, and (2) such that the facts adduced at trial clearly indicate that a jury could convict on the lesser while acquitting on the greater offense. For those reasons, the conclusion that the trial court sua sponte should have given a jury charge on hindering apprehension simply because it was an offense carrying a level of liability lower than that of robbery is rejected. (pp. 21-22)
6. For the reasons presented in an Appellate Division opinion in 2001, we hold that there is no mens rea element to the portion of the eluding statute that enhances a defendant's exposure from a third- to a second-degree offense if, while knowingly fleeing or attempting to elude any law enforcement officer, a defendant creates a risk of death or injury to any person. Given Thomas's actions, there can be no doubt that his flight from the scene of the robbery and his attempt to elude the police who pursued him created a palpable risk of death or injury. (pp. 23-24)
7. Because we reverse that portion of the Appellate Division's judgment that triggered the remand, and because we reinstate the robbery conviction, Thomas's sentencing claims are again ripe for disposition. We remand the cause to the Appellate Division for its consideration of those claims. (p. 25)
The judgment of the Appellate Division in respect of defendant's robbery conviction is REVERSED and defendant's second degree robbery conviction is REINSTATED. The judgment of the Appellate Division sustaining defendant's second-degree eluding conviction is AFFIRMED. The cause is REMANDED to the Appellate Division for its consideration of Thomas's sentencing arguments.
CHIEF JUSTICE PORITZ and JUSTICES LaVECCHIA, ZAZZALI, ALBIN, and WALLACE join in JUSTICE RIVERA-SOTO's opinion. JUSTICE LONG did not participate.
The opinion of the court was delivered by: Justice Rivera-soto.
This appeal requires that we address two separate issues. First, we must consider whether, in the absence of a request by either the prosecution or the defense, the trial court erred in not charging the crime of hindering apprehension as an included or related offense of robbery. Second, we must also consider whether the trial court committed plain error when it failed to instruct the jury that, in order to sustain a conviction for second-degree eluding, the prosecution bore the burden of proving that the defendant knowingly created a risk of death or injury during flight from the commission of the crime.
We hold that, due to constitutional grand jury and notice considerations, trial courts are under no obligation to give, sua sponte, a related offense instruction that is not requested by either the prosecution or the defense. We further hold that there is no mens rea element to that portion of the eluding statute, N.J.S.A. 2C:29-2b, that enhances a defendant's penal exposure from a third- to a second-degree offense if, while knowingly fleeing or attempting to elude any law enforcement officer, the defendant "creates a risk of death or injury to any person."
The relevant facts in this case are easily summarized. At approximately 5:30 p.m. on November 9, 2001, in Union Township, seventy-five year old Lore Kraemer was returning to her car from the cleaners when a man crouched by the front wheel of her car attacked her. He grabbed her left wrist, twisted and pulled her arm, and took her pocketbook containing some $750. The man ran to an idling station wagon driven by defendant Charles Thomas, and the station wagon drove off. The station wagon had been stolen earlier that week.
Kraemer screamed and returned to the cleaners to telephone the police. In the interim, Officer Daniel Roman, who was off-duty and driving his personal vehicle but was in uniform, drove past the cleaners and noticed the commotion. Officer Roman spoke with two men at the scene and gave chase after the station wagon. As he followed defendant, he radioed police dispatch, appraised them of what he had heard and observed, reported his location and that ...